Suders v. Easton

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

4-16-2003

Suders v. Easton

Precedential or Non-Precedential: Precedential

Docket 01-3512

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PRECEDENTIAL

Filed April 16, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-3512

NANCY DREW SUDERS,

Appellant,

v.

ERIC D. EASTON, WILLIAM D. BAKER, ERIC B.

PRENDERGAST, VIRGINIA SMITH ELLIOTT, AND THE

PENNSYLVANIA STATE POLICE

On Appeal from the United States District Court

for the Middle District of Pennsylvania

District Court Judge: The Honorable Sylvia H. Rambo

(00-CV-01655)

Argued on April 11, 2002

Before: McKEE and FUENTES, Circuit Judges, and

POGUE,* Judge

(Opinion Filed: April 16, 2003)

Don Bailey (argued)

4311 N. 6th Street

Harrisburg, PA 17110

Attorney for Appellant

* The Honorable Donald C. Pogue, United States Court of International

Trade, sitting by designation.

2

D. Michael Fisher

Attorney General

Sarah C. Yerger (argued)

Deputy Attorney General

Calvin R. Koons

Senior Deputy Attorney General

John G. Knorr, III

Chief Deputy Attorney General

Chief, Appellate Litigation Section

Office of the Attorney General

15th Floor, Strawberry Square

Harrisburg, PA 17120

Attorneys for Appellees

OPINION OF THE COURT

FUENTES, Circuit Judge:

In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742

(1998) and Faragher v. City of Boca Raton, 524 U.S. 775

(1998), the Supreme Court addressed the scope of the

vicarious liability of an employer for the discriminatory and

harassing conduct of its supervisors in the context of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et

seq. (“Title VII”). The Court also sought to clarify the

confusion among the Courts of Appeals as to the scope and

proper grounds for such liability. To that end, the Court

held that an employer shall be strictly liable to a victimized

employee for an actionable hostile work environment

created by a supervisor, when the discrimination or

harassment at issue results in a “tangible employment

action.”1 Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at

1. The concept of a tangible employment action is distinct from that of a

materially adverse employment action which is a necessary element of a

prima facie case under Title VII. See Robinson v. City of Pittsburgh, 120

F.3d 1286, 1300 (3d Cir. 1997); see also St. Mary’s Honor Center v.

Hicks, 509 U.S. 502, 506-07 (1993). Litigants, and oftentimes courts,

confuse the two. See Herrnreiter v. Chicago Housing Authority, 315 F.3d

742, 743-44 (7th Cir. 2002) (discussing courts’ use of the terms “tangible

employment action” and “materially adverse employment action.”).

Courts have yet to address the differences between them. It is worth

noting generally that because Ellerth and Faragher create a rule of strict

liability, we understand a tangible employment action as being a

narrower, more restricted category of actions occurring in the workplace.

3

807. Furthermore, the Court defined a tangible employment

action in general, categorical terms: “a significant change in

employment status,” often, but not always, resulting in

economic injury. Ellerth, 524 U.S. at 761-62; see also

Faragher, 524 U.S. at 808. A tangible employment action

was also defined by reference to a non-exclusive list of

possible actions: “hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or

a decision causing a significant change in benefits.” Ellerth,

524 U.S. at 761; see also Faragher, 524 U.S. at 790. When

no tangible employment action results, the employer may

still be liable, but it may raise an affirmative defense to

liability or damages. The affirmative defense has two

components: “(a) that the employer exercised reasonable

care to prevent and correct promptly any sexually

harassing behavior, and (b) that the plaintiff employee

unreasonably failed to take advantage of any preventive or

corrective opportunities provided by the employer or to

avoid harm otherwise.” Ellerth, 524 U.S. at 765; Faragher,

524 U.S. at 807.

Against this backdrop, the matter on appeal raises novel

issues of law of critical importance to civil actions brought

in our Circuit pursuant to Title VII. Among those we are

asked to review, we address today the issue of whether a

constructive discharge constitutes a tangible employment

action, such that the affirmative defense to the liability of

an employer for the discriminatory conduct of its

supervisors would not be available to the employer.

Although our analysis is informed by the Supreme Court’s

decisions in Ellerth and Faragher, our ruling today

necessarily reaches issues that were not specifically

addressed by the Court in either of those two decisions.

In the underlying action, plaintiff Nancy Drew Suders

(“Suders”) alleged that she was subjected to a sexually

hostile work environment and discriminated against on the

basis of her age and political affiliation. She also contended

that she was constructively discharged. Suders identified

three officers of the Pennsylvania State Police (“PA State

Police”) as the primary harassers and sought to hold the PA

State Police vicariously liable for the actions of its agents.

After the close of discovery, defendants moved for summary

4

judgment. The District Court granted the motion in its

entirety. As to her claim of a sexually hostile work

environment, the District Court found that, although

Suders had raised genuine issues of material fact as to

each requisite element, the PA State Police was entitled to

raise the affirmative defense set forth in Ellerth and

Faragher. Having found that the PA State Police met its

burden of establishing the affirmative defense, the District

Court granted summary judgment as to Suders’s claim of a

sexually hostile work environment. The Court failed to

address Suders’s claim of constructive discharge and

whether such a claim would affect the availability of the PA

State Police’s assertion of the affirmative defense.

We will reverse the District Court’s judgment as to

Suders’s claim of a sexually hostile work environment. In so

doing, we hold that a constructive discharge, when proved,

constitutes a tangible employment action within the

meaning of Ellerth and Faragher. Consequently, when an

employee has raised a genuine issue of material fact as to

a claim of constructive discharge, an employer may not

assert, or otherwise rely on, the affirmative defense in

support of its motion for summary judgment.

I.

2

A. Background

Suders is a wife and mother of three children. From

approximately 1988 until her employment with the PA State

Police, Suders was Chief Deputy Sheriff and Secretary to

the Fulton County Sheriff. She had a wide array of

responsibilities, including bookkeeping, transporting

prisoners, serving warrants, and administering special

programs. Suders also served as an active member of the

local chapter of the Republican Party. In connection with

her political activities, she became acquainted with Mikael

Fix, the Republican County Chairman, and Robert

2. In our review of the factual background, we must resolve all factual

doubts and draw all reasonable inferences in favor of Suders, the party

opposing the motion for summary judgment. See Aman v. Cort Furniture

Rental Corp., 85 F.3d 1074, 1077 n.1 (3d Cir. 1996).

5

Jubelirer, a State Senator. Sometime in 1998, these

individuals suggested to Suders that she apply for an open

position with the PA State Police. When she decided to

apply, Chairman Fix assisted Suders in her application.

During the pendency of her application and before

accepting a position, Suders heard from the Fulton County

Sheriff that officers of the PA State Police were opposed to

her candidacy because they viewed her as a political

appointment. The extent to which Republican party officials

intervened on behalf of Suders is unclear. Nevertheless,

Chairman Fix eventually told Suders that the PA State

Police had approved her application.

Suders accepted a position as a police communications

operator (“PCO”) with the PA State Police and commenced

her employment on or about March 23, 1998, at the

McConnellsburg barracks. Her employment began with a

probationary period, during which Suders worked alongside

another PCO. In June 1998, Suders attended a formal, two-

week training program, after which she undertook the

duties of a PCO by herself.

Starting from her probationary period and steadily

escalating after her two-week training period, Suders

alleged that she suffered mistreatment and sexual

harassment so severe that she ultimately felt compelled to

resign on August 20, 1998. She recounts several instances

of name-calling, repeated episodes of explicit sexual

gesturing, obscene and offensive sexual conversation, and

the posting of vulgar images. According to Suders, the

following defendants were the main perpetrators of the

sexual harassment that she allegedly suffered: Sergeant

Eric D. Easton (“Easton”), Station Commander of the

McConnellsburg barracks; Patrol Corporal William D. Baker

(“Baker”); and Corporal Eric B. Prendergast (“Prendergast”).

As Station Commander, Sergeant Easton was responsible

for the day-to-day supervision of the McConnellsburg

barracks. Even before she commenced her employment

with the PA State Police, Suders encountered problems with

Easton. Easton told Suders that he had some concerns

about her and that anything she would say would simply

be her word against his. Suders also recalled that every

6

time she would go into Easton’s office, “he would bring up

[the subject of] people having sex with animals. . . . [T]hat’s

all the man wanted to talk about.” Suders v. Easton, No.

00-CV-1655, slip op., at 3 (M.D. Pa. Aug. 16, 2001) (the

“Decision”) (quotations and citations omitted). Easton and

Prendergast often had discussions in front of Suders, and

on one occasion, Easton stated that “if someone had a

daughter, they should teach her how to give a good blow

job!” App. at 151. Easton once commented to Suders that

his wife had small breasts.

Easton also made disparaging remarks about Suders’s

age. He commented to Suders that “[i]t is awful getting old,

isn’t it Nancy?” Decision, at 2 (quotations and citations

omitted). Easton also remarked that “a 25-year-old could

catch on faster than [Suders] could.” Id. at 3 (quotations

and citations omitted).

The sexually charged nature of Easton’s conduct toward

Suders was not limited to conversation. She was offended

“when Defendant Easton, wearing spandex shorts, would

sit down in the chair [near Plaintiff ’s work space], put his

hands behind his head and spread his legs apart.” Id.

(quotations and citations omitted). She claimed that Easton

would leer at her. Suders conceded that Easton never made

any overt sexual advances towards her, but she had no

idea “what he was going to do.” Id. (quotations and citations

omitted). Suders avoided Easton to the extent possible.

Easton did not deny making many of the statements

above; instead he claimed that Suders misinterpreted them.

As to the statements concerning Suders’s age, Easton

allegedly made them in order to defend Suders and to

explain why she might be having trouble catching on to the

job. With regard to the statements concerning bestiality and

oral sex instruction, Easton claimed that they pertained to

actual investigations. Easton also noted that Suders was

generally disorganized, frequently late for work, and easily

overwhelmed by her job responsibilities. When he

attempted to offer constructive criticism, he claimed that

Suders did not handle it well.

As a Patrol Corporal at the McConnellsburg barracks,

defendant Baker also had a supervisory role at the station.3

3. Sergeant Easton explained that “[e]ach corporal had some similar

duties as far as running the shift, responding to incidents depending on

7

According to Suders, Baker was responsible for the most

inflammatory harassment that she suffered. Soon after she

began working at the communications desk by herself,

Suders recalled that Baker had a habit of making obscene

gestures to her, as many as five to ten times per night

throughout her five-month tenure at the station. These

gestures followed the same pattern. In an apparent

imitation of a move popularized by televised wrestling,

Baker would “cross his hands, grab hold of his private

parts and yell, suck it.” App. at 65. Suders recalled that

“[t]he man did this, and he would beat on it. He would beat

his hands on his crotch too and yell suck it. He would ask

me to do this garbage. . . . All he wanted to do was play

with his crotch.” Id. at 65-66. Suders claimed that Baker

kept a picture near his work space of a professional

wrestler performing this same gesture. In between these

offensive acts, Baker would take time to rub his rear end in

front of her and remark “I have a nice ass, don’t I?” Id. at

67. Another time, Baker announced to Suders, without

invitation, that he intended to pierce his genitals and that

his wife would pierce her nipple. Baker also referred to

Suders as “momma.” Decision, at 5 (quotations and

citations omitted).

On one occasion, Suders confronted Baker about his

offensive conduct, specifically about his repeated gestures.

She told him “I don’t think you should be doing this.” App.

at 66. According to Suders, Baker responded by grabbing a

straight back chair in the communications room, jumping

onto it, and repeating the move, including the verbal

exclamation.

As a Corporal, defendant Prendergast shared some

supervisory authority with Baker.4 Suders contended that

the severity of the incident, and each corporal had some specialized

duties. . . . Then each corporal also had specific personnel assigned to

them to supervise.” App. at 215.

4. As Easton noted, “Eric Prendergast I believe was the corporal who was

assigned to [Suders], but if he was not working say a three to eleven

shift, then it would be whatever corporal was working that shift would

be in charge of the shift.” App. at 224.

8

Prendergast verbally harassed her day after day. He called

Suders a liar and told her that “the village idiot could do

her job.” App. at 69. She also testified that Prendergast

would wear black gloves, pound on the furniture in the

communications room, and intimidate her. According to

Suders’s complaint filed on September 18, 2000,

Prendergast allegedly told her that she would be “the last

political appointee who had a job there at the substation.”

Id. at 30.

As often happens in cases involving allegations of sexual

harassment, the defendants’ recollections of the events

differ from Suders’s. The testimony of the PA State Police

officers is notable, however, for its internal inconsistencies

and ambiguities. For instance, Baker adamantly denies that

he ever performed the wrestling gesture in front of Suders.

When asked if he ever saw this harassment take place,

however, Prendergast seemed to deny any recollection at

first, but then conceded that he may have seen Baker

perform it on one occasion. Id. at 252.

As noted above, Suders attempted to confront at least

one of the defendants, Baker, by asking him to stop the

offensive conduct. She did not, however, report any of the

incidents to anyone else at the McConnellsburg barracks.

In her own words, Suders explained that “there was no one

on that station that I could go to. I had a sergeant there

who was talking about abusing children and bestiality.

There was no way I was going to be able to tell him. There

was nobody.” Id. at 68.

In the summer of 1998, the relationship between Suders

and the defendants rapidly deteriorated in a series of events

that led to her departure. It began when an accident file

turned up missing. Baker asked Suders if she had the

misplaced file, and when she responded that she did not,

Prendergast accused her of taking the file home. Decision,

at 5.

At this point, the situation was critical enough that

Suders sought help from persons outside the

McConnellsburg barracks. During her formal training in

June 1998, Suders approached defendant Virginia Smith-

Elliott (“Smith-Elliott”), who, in her capacity as Equal

9

Employment Opportunity Officer of the PA State Police, had

taught a training class on sexual harassment that Suders

had attended. Without mentioning details, Suders told

Smith-Elliott that she might need some help. Smith-Elliott

gave Suders her phone number. Neither Suders nor Smith-

Elliott followed up on the matter.

On July 22, 1998, Suders received a supervisor’s

notation for failing to complete an assignment given to her

back in May. Days later, on July 26, 1998, Suders was

reprimanded again, ostensibly because she had not

properly disseminated information about an escaped

convict from Ohio. Suders claimed that she received advice

from someone at the station that she need not worry about

the message because the escapee was from Ohio. Based on

that advice, Suders simply placed the information in a

Corporal’s bin. During this time period, the sexual

harassment noted above continued unabated.

On or about August 18, 1998, Suders reached a breaking

point. She contacted Smith-Elliott again, and this time,

Suders specifically mentioned that she was being harassed

and that she was afraid. According to Suders, Smith-Elliott

was insensitive and unhelpful. Smith-Elliott instructed her

to file a complaint on a standard form without telling

Suders where to obtain the form. Suders attempted to find

the correct form in employee manuals, but never found it.

She was fearful that Prendergast was watching her every

move. For her part, Smith-Elliott acknowledged that Suders

contacted her around then, but that Suders never

mentioned any incidents of sexual harassment,

complaining only of age and political affiliation

discrimination. Smith-Elliott also recalled that she

promised to send Suders the proper complaint form.

Two days after the phone conversation with Smith-Elliott,

one final incident proved to be the last straw. Suders

alleged that, on August 20, 1998, the other officers set her

up and falsely accused her of theft. The events leading up

to the incident occurred as follows. Officers of the PA State

Police were required to take an exam designed to measure

computer skills. The results were supposed to be sent to

Hollidaysburg, where the department in charge of officer

education was located. Suders took the exam several times,

10

and each time her supervisors told her that she had failed.

She believed that the officers lied to her about the test

results and that they never sent her test scores to

Hollidaysburg because she found her exams in a set of

drawers in the women’s locker room. Suders contended

that those drawers were not assigned to any specific officer,

while the PA State Police countered that the drawers

contained another PCO’s private belongings.

At some point, the officers realized that Suders’s test

results were missing. The officers dusted the drawers and

the file inside with a theft detection powder that is invisible

to the eye, but reacts when touched by hand, thereby

turning the hand of a suspected thief blue. Suders testified

that, on that day, she sought to return the papers that she

had earlier obtained. Her hands turned unmistakably blue.

When the officers in the barracks apprehended Suders,

they treated her as they would an accused suspect. She

was handcuffed, photographed, and questioned. She felt

“abused, threatened and held against her will.” Decision, at

7 (quotations and citations omitted).

Any prospect for reconciliation was now lost. Suders had

prepared a written resignation prior to the events of August

20, 1998 and had been carrying it with her. After the

accusation of theft and the questioning by her supervisors,

Suders tendered her resignation. When Suders attempted

to leave the barracks, Baker told her that she could not

leave because she was a “suspect.” Id. Later, the officers

took Suders into an interrogation room, where Easton

advised Suders of her Miranda rights. After being detained

for further questioning, Suders demanded to be released.

When Suders reiterated her intent to resign, Easton

ultimately permitted her to leave.

B. The District Court’s Decision

In the underlying action, Suders asserted that she was

discriminated against on the basis of age, political

affiliation, and sex. Her claims were based on the following

statutes: (1) the Age Discrimination in Employment Act, 29

U.S.C. § 621, et seq. (“ADEA”); (2) Title VII; and (3) the

Pennsylvania Human Relations Act, 43 PA. CONS. STAT. ANN.

§ 951, et seq. (“PHRA”). Suders brought all three claims

11

against Easton, Baker, Prendergast, Smith-Elliott, and the

PA State Police.

After the close of discovery, defendants moved for

summary judgment. The District Court granted the motion

in its entirety. First, the District Court held that neither

Title VII nor the ADEA contemplates the liability of

individual employees. The Court cited our decisions in

Kachmar v. SunGard Data Systems, Inc., 109 F.3d 173, 184

(3d Cir. 1997), and Sheridan v. E.I. DuPont de Nemours &

Co., 100 F.3d 1061, 1077 (3d Cir. 1996), in granting

summary judgment in favor of the individual defendants on

Suders’s Title VII and ADEA claims.

With respect to Suders’s ADEA claim against the PA State

Police, the Court held that the Eleventh Amendment barred

the claim against a state agency. Decision, at 12 (citing

Kimel v. Florida Bd. of Regents, 528 U.S. 62, 91 (2000)).

The Court also noted that, because Eleventh Amendment

immunity extends to similar claims based on state law

causes of actions, Suders’s PHRA claim against the PA

State Police was also barred.

With regard to the PHRA claims against the individual

defendants, the defendants argued that the Eleventh

Amendment immunity enjoyed by the PA State Police also

barred any claim against a state official for actions taken

within the course of employment. Therefore, the defendants

contended that, to the extent that the PA State Police was

immune from Suders’s claim under the PHRA, the

individual defendants were also immune from those claims.

The District Court observed that Suders had not responded

to this argument and, therefore, granted summary

judgment in favor of the individual defendants on the PHRA

claims.

The District Court’s analysis left Suders with two claims

pursuant to Title VII: her hostile work environment and

constructive discharge claims against the PA State Police.

The Court found that Suders had marshaled enough

evidence to raise a genuine issue of fact as to each of the

following elements of a Title VII action against an employer:

(1) the work environment was sufficiently hostile to

constitute intentional discrimination; (2) the discrimination

12

was pervasive and regular; (3) the defendants’ conduct

detrimentally affected Suders; and (4) the defendants’

conduct was sufficiently hostile to offend a reasonable

person. Decision, at 13-15 (citing Andrews v. City of

Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990)).5

On the issue of vicarious liability, however, the District

Court proceeded with an analysis of the affirmative defense

set forth in Ellerth and Faragher. In that regard, the Court

found that “as a matter of law . . . [Suders] unreasonably

failed to avail herself of the [PA State Police’s] internal

procedures for reporting any harassment. This is especially

true as [Suders] had personal contact with the Affirmative

Action officer early in her employment, but failed to pursue

this avenue of complaint.” Decision, at 18. Therefore, the

District Court found no genuine issue of material fact as to

the PA State Police’s assertion of the affirmative defense.

The Court thus granted the motion for summary judgment

on Suders’s remaining claim pursuant to Title VII.

The District Court did not address Suders’s claim of

constructive discharge. As a result, the Court never reached

the issue of whether the claim of constructive discharge

would affect the availability of the affirmative defense

invoked by the PA State Police.

II.

The District Court had jurisdiction over the underlying

action pursuant to 28 U.S.C. §§ 1331, 1343 and 1367. We

have jurisdiction to review the final order of the District

Court pursuant to 28 U.S.C. § 1291.

Our review of the District Court’s grant of summary

judgment is plenary. See Doe v. County of Centre, PA, 242

F.3d 437, 446 (3d Cir. 2001). As we have stated in the past,

in the context of summary judgment, we must apply the

same test that the District Court applied. See id.; Levendos

v. Stern Entertainment, Inc., 860 F.2d 1227, 1229 (3d Cir.

1988).

Pursuant to Rule 56(c) of the Federal Rules of Civil

5. See part III.A, infra, for a discussion of the Andrews test.

13

Procedure, a district court may grant a motion for summary

judgment only when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.” We must view the evidence

presented to the trial court, and any reasonable inferences

drawn therefrom, in the light most favorable to the non-

moving party. See Curley v. Klem, 298 F.3d 271, 276-77 (3d

Cir. 2002). When the factual assertions of the party

opposing the motion conflict with those of the movant, we

must resolve those conflicts in favor of the former. See

Levendos, 860 F.2d at 1229 (citing Jackson v. University of

Pittsburgh, 826 F.2d 230, 232 (3d Cir. 1987), cert. denied,

484 U.S. 1020 (1988)).

III.

Our analysis begins with the specific claim which Suders

appeals, that is, her claim of a sexually hostile work

environment pursuant to Title VII. Then, we address the

propriety of the District Court’s decision to permit the PA

State Police to invoke the affirmative defense to strict

liability.

A. Suders’s Claim of a Sexually Hostile Work

Environment

Title VII makes it unlawful for an employer “to fail or

refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of

employment, because of such individual’s . . . sex.” 42

U.S.C. § 2000e-2(a)(1). In Meritor Savings Bank, FSB v.

Vinson, 477 U.S. 57, 65-67 (1986), the Supreme Court

recognized that an employee who has been sexually

harassed has a cause of action pursuant to Title VII if the

sexual harassment at issue was either a quid pro quo

scenario, or if the harassment was so pervasive that it had

the effect of creating a hostile work environment and of

altering the conditions of employment. In the present case,

Suders alleged a violation of Title VII based on the second

scenario set forth in Meritor: a hostile work environment at

the McConnellsburg barracks.

14

Shortly after the Supreme Court’s decision in Meritor, we

addressed a number of issues relating to the burgeoning

jurisprudence of sexual harassment. See Andrews, 895

F.2d at 1482. In Andrews, we held that an employee

seeking to bring a hostile work environment claim against

his or her employer must establish the convergence of five

factors: (1) the employee suffered intentional discrimination

because of his or her sex; (2) the discrimination was

pervasive and regular; (3) the discrimination detrimentally

affected the employee; and (4) the discrimination would

detrimentally affect a reasonable person of the same sex in

that position.6 895 F.2d at 1482; see also Knabe v. The

Boury Corp., 114 F.3d 407, 410 (3d Cir. 1997).

In Andrews, we also discussed a plaintiff ’s burden with

respect to each of the factors. With regard to the first

factor, we noted that intentional discrimination is implicit

in cases involving “sexual propositions, innuendo,

pornographic materials, or sexual derogatory language.”

Andrews, 895 F.2d at 1482 n.3. In such cases, the intent

to discriminate “should be recognized as a matter of

course.” Id. The second factor requires that the “incidents

of harassment occur either in concert or with regularity.”

Id. at 1484 (quotations and citations omitted). The third

factor is a subjective inquiry of whether the particular

plaintiff was demonstrably injured. See id. at 1483. And the

fourth factor injects a requirement of objectivity: it ensures

that employers are held liable only when the work

environment is hostile from the standpoint of a reasonable

person. See id. at 1483 (noting the need to protect

employers from “hypersensitive” employees, but recognizing

“the goal of equal opportunity” and “the walls of

discrimination that deprive women of self-respecting

employment.”).

6. The fifth factor of the Andrews test is respondeat superior liability. Of

course, in the context of the vicarious liability of an employer for the acts

of its supervisors, the analysis under the fifth factor is materially altered

by the Supreme Court’s decisions in Ellerth and Faragher. Accordingly,

we devote Part III.C, infra, to discussing this issue. For present

purposes, our discussion of Suders’s hostile work environment claim is

limited to the first four factors.

15

When assessing the relevant factors, we are reminded to

view the record as a whole and admonished against

focusing on either one particular factor or a specific

incident: “Particularly in the discrimination area, it is often

difficult to determine the motivations of an action and any

analysis is filled with pitfalls and ambiguities. A play

cannot be understood on the basis of some of its scenes

but only on its entire performance, and similarly, a

discrimination analysis must concentrate not on individual

incidents, but on the overall scenario.” Id. at 1484; see also

Knabe, 114 F.3d at 410.

With these principles in mind, we agree with the District

Court insofar as it held that Suders had raised genuine

issues of material fact as to her claim of a sexually hostile

work environment. Drawing all reasonable inferences in her

favor, Suders established all of the following:

(1) her own Station Commander had a preoccupation

with discussing bestiality and oral sex with her;

(2) Easton’s “conversations” were accompanied by

leering and suggestive posturing—conduct that Suders

found offensive;

(3) Baker routinely engaged in sexually-charged acts

intended to humiliate or demean Suders, even after he

was politely asked to stop. Viewed in the most

generous light, his repeated reenactments of the

wrestling move were indicative of an immense

immaturity and could reasonably be perceived as

innuendo; and

(4) When not making offensive gestures with his

crotch, Baker attempted to engage Suders in

conversations about piercing his genitals.

Although this brief summary does not catalog all of the

offensive conduct alleged, it is sufficient to show that a

reasonable jury could find that the work environment at the

McConnellsburg barracks was rife with hostility and sexual

innuendo. There is no question that under the standard set

forth in Andrews, Suders has raised genuine issues of

material fact as to the intentional nature of the

discrimination at the McConnellsburg barracks.

16

It is also clear that Suders offered evidence sufficient to

establish a pattern of sexual harassment that was pervasive

and regular. Particularly telling is Baker’s repetition of the

wrestling move five to ten times per shift. In addition,

Easton’s conduct, although not daily, occurred with

regularity. Together, Baker’s and Easton’s conduct is

sufficient to raise a genuine issue of material fact as to the

second factor in Andrews.

In addition, both the subjective and objective components

of the Andrews test are satisfied here. Because of the

severe and pervasive harassment of her supervising officers,

Suders felt that her only recourse was to draft a resignation

letter. With respect to the objective standard, the District

Court found that “there was enough conduct in the instant

action to raise an issue of fact that the atmosphere was

sufficiently hostile to offend a reasonable person in

Plaintiff ’s position. Most persuasive is Plaintiff ’s testimony

regarding the ‘wrestling move’ that Defendant Baker

allegedly repeated five to ten times during each shift that he

worked with Plaintiff.” Decision, at 14-15.

Up to this point in the analysis, we are in complete

agreement with the District Court. Suders presented

compelling evidence sufficient to raise genuine issues of

material fact on her claim of a sexually hostile work

environment. We part company with the District Court,

however, in the balance of its analysis relating to the

liability of the PA State Police. Although it concluded that

Suders had marshaled enough evidence to survive the

motion for summary judgment, the District Court

proceeded to consider the affirmative defense set forth in

Ellerth and Faragher. Ultimately, it found that the PA State

Police was entitled to assert the defense and that there were

no issues of fact justifying trial on the merits. Thus, the

Court granted summary judgment as to Suders’s Title VII

claim against the PA State Police.

We believe that the District Court’s analysis was

fundamentally flawed for two reasons. First, even if the PA

State Police could assert the affirmative defense, disputed

issues of fact relating to the defense preclude summary

judgment here. While the PA State Police contended that it

had an effective remedial program in place to address

17

sexual harassment claims, Suders never found the

complaint form necessary to trigger an investigation.

Moreover, Suders contacted Smith-Elliott twice. The first

time, Suders alluded to potential problems and stated that

she might need assistance. No attempt was made to follow

up on Suders’s initial contact. The second time, Suders

contended that Smith-Elliott was entirely unhelpful,

appearing insensitive at times. On this record, it is unclear

whether the PA State Police exercised reasonable care to

prevent or correct the sexual harassment that Suders

claimed she suffered. Accordingly, the grant of summary

judgment on the basis of the affirmative defense was

improper.

Second, and more importantly, the Court did not

consider Suders’s claim of constructive discharge and

whether a claim of constructive discharge would affect the

availability of the affirmative defense.

B. Constructive Discharge

Suders argued that, as a result of the pervasive sexual

harassment and discrimination at the McConnellsburg

barracks, she had no alternative but to resign. In other

words, she contended that her departure, although

voluntary in the strict sense of the word, was a constructive

discharge because of the hostile work environment that she

endured. To the extent that the District Court did not

recognize a claim of constructive discharge, we hold that

the Court erred. The allegations of constructive discharge

were apparent on the face of Suders’s complaint. In the

very first paragraph, Suders alleged that she was “forced to

suffer a termination of employment because she would not

yield to sexual suggestions, innuendoes and solicitatious

[sic] behavior.” App. at 27. She also stated that “when

defendants, by and through [PA State Police] operatives, on

August 20, 1998, threatened plaintiff, she felt she had no

choice but to resign, and did so out of fear.” Id. at 34. The

record is also replete with testimony relating to

harassment, discrimination, false charges of theft, and

Suders’s eventual resignation. Therefore, we will address

the merits of Suders’s claim of constructive discharge based

on the record presented in the District Court, an inquiry

18

that should have been performed in the first instance by

the trial court.

In Goss v. Exxon Office Systems Co., 747 F.2d 885, 887

(3d Cir. 1984), we first recognized that “acts of

discrimination in violation of Title VII can make working

conditions so intolerable that a reasonable employee would

be forced to resign.” Noting that the Courts of Appeals were

divided as to the findings necessary to support a

constructive discharge claim, we adopted an objective

standard, as opposed to a specific intent standard: “We

hold that no finding of a specific intent on the part of the

employer to bring about a discharge is required for the

application of the constructive discharge doctrine. The

court need merely find that the employer knowingly

permitted conditions of discrimination in employment so

intolerable that a reasonable person subject to them would

resign.” Id. at 888. In adopting the objective standard, we

held that a plaintiff-employee may prevail on a claim of

constructive discharge by establishing that “the conduct

complained of would have the foreseeable result that

working conditions would be so unpleasant or difficult that

a reasonable person in the employee’s shoes would resign.”

Id. at 887-88 (citations omitted) (emphasis added); see also

Gray v. York Newspapers, Inc., 957 F.2d 1070, 1079 (3d

Cir. 1992) (citing Goss).

In Goss, we were convinced that the objective standard

had been met because (1) plaintiff, a saleswoman, was

verbally harassed by her supervisor about her plans to have

children; (2) after taking sick leave as a result of a

miscarriage, her sales territory had been taken away and

replaced with a less lucrative territory; and (3) when she

objected, plaintiff was told to either accept the assignment

or resign. 747 F.2d at 888.

In subsequent decisions, we have elaborated on the

requirements of a constructive discharge claim. For

instance, we have rejected the imposition of an “aggravating

circumstances” requirement often imposed by other Courts

of Appeals.7 Aman, 85 F.3d at 1084 (citing Levendos, 860

7. In that regard, we noted that “we cannot state as a broad proposition

of law that a single non-trivial incident of discrimination can never be

19

F.2d at 1232). Therefore, in Aman, we held that “[t]he fact

that [plaintiff] had been subject to continuous

discrimination during her employment could support a

conclusion that she simply had had enough. No other

precipitating facts were legally required.” 85 F.3d at 1084.

Despite our rejection of an aggravating circumstances

requirement, we have stated that a plaintiff claiming

constructive discharge must demonstrate that the alleged

discrimination surpasses “a threshold of ‘intolerable

conditions.’ ” See Duffy v. Paper Magic Group, Inc., 265 F.3d

163, 169 (3d Cir. 2001); Connors v. Chrysler Financial

Corp., 160 F.3d 971, 976 (3d Cir. 1998). In Connors, we

noted that

“Intolerability” is not established by showing merely

that a reasonable person, confronted with the same

choices as the employee, would have viewed

resignation as the wisest or best decision, or even that

the employee subjectively felt compelled to resign;

presumably every resignation occurs because the

employee believes that it is in his interest to resign.

Rather, “[i]ntolerability . . . is assessed by the objective

standard of whether a ‘reasonable person’ in the

employee’s position would have felt compelled to

resign,”—that is, whether he would have had no choice

but to resign.

160 F.3d at 976 (emphasis in original) (quoting Blistein v.

St. John’s College, 74 F.3d 1459, 1468 (4th Cir. 1996)).

egregious enough to compel a reasonable person to resign. An

employment discrimination plaintiff may simply face a more difficult

burden of proof in establishing the employer’s liability, when relying on

a single discriminatory incident as a basis for arguing the occurrence of

constructive discharge.” Levendos, 860 F.2d at 1232; see also Aman, 85

F.3d at 1084.

When we decided the appeal in Levendos, at least three Courts of

Appeals had articulated an aggravating circumstances requirement. See

Levendos, 860 F.2d at 1232 n.9 (citing Nolan v. Cleland, 686 F.2d 806,

813 (9th Cir. 1982); Pittman v. Hattiesburg Municipal Separate School

District, 644 F.2d 1071, 1077 (5th Cir. 1981); Clark v. Marsh, 665 F.2d

1168 (D.C. Cir. 1981)).

20

In Clowes v. Allegheny Valley Hospital, 991 F.2d 1159,

1161 (3d Cir.), cert. denied, 510 U.S. 964 (1993), we sought

to refine these requirements further by identifying several

situations that may be indicative of constructive discharge:

(1) a threat of discharge; (2) suggestions or encouragement

of resignation; (3) a demotion or reduction of pay or

benefits; (4) involuntary transfer to a less desirable

position; (5) alteration of job responsibilities; (6)

unsatisfactory job evaluations. Our identification in Clowes

of situations that often accompany constructive discharge

was not intended to be exhaustive; rather the situations

were intended “to illustrate some of the factors on which

plaintiffs claiming constructive discharge have relied.” 991

F.2d at 1161 n.1 (emphasis added); see also Duffy, 265

F.3d at 168 (“[W]e have never made the Clowes factors an

absolute requirement for recovery. . . . The absence of the

factors in Clowes is not necessarily dispositive.”).

Nevertheless, the situations delineated in Clowes have

assisted courts in our Circuit over the years in identifying

meritorious constructive discharge claims. See, e.g., Duffy,

265 F.3d at 168 (“The District Court correctly recognized

that Duffy had failed to demonstrate any of the factors

listed in Clowes.”).

Furthermore, we recognized another important

consideration in Clowes that relates to the inquiry of

whether a reasonable person would have felt compelled to

resign: “As other courts of appeals have noted, a reasonable

employee will usually explore such alternative avenues

thoroughly before coming to the conclusion that resignation

is the only option.” 991 F.2d at 1161 (citations omitted). We

underscore that this consideration does not amount to a

quasi exhaustion requirement: “We do not require such

steps to be taken in all cases. An employee may be able to

show working conditions were so intolerable that a

reasonable employee would feel forced to resign without

remaining on the job for the period necessary to take those

steps.” Id. at 1162 n.6. Therefore, it is relevant to a claim

of constructive discharge whether a plaintiff explored

alternative avenues to resolve the alleged discrimination,

but the plaintiff ’s actions must be considered in light of the

totality of circumstances. Clowes simply recognizes that, in

many cases, a reasonable person will not react to minor

21

harassment or workplace disturbances by heading straight

for the exit and that, in others, the harassment or

discrimination may be so severe that any reasonable person

would feel compelled to walk out immediately.

Based on our existing jurisprudence, then, we reiterate

that a plaintiff-employee alleging a constructive discharge

in violation of Title VII must establish the convergence of

two factors: (1) he or she suffered harassment or

discrimination so intolerable that a reasonable person in

the same position would have felt compelled to resign; in

that regard, although we cannot say as a matter of law that

a single incident of discrimination is insufficient to show a

constructive discharge, the employee has the burden of

establishing that the discrimination surpassed a threshold

level of intolerability; and (2) the employee’s reaction to the

workplace situation—that is, his or her decision to resign—

was reasonable given the totality of circumstances; as to

this factor, although it is relevant whether the employee

explored alternative avenues to resolve the alleged

discrimination before resigning, a failure to do so will not

defeat a claim of constructive discharge where the working

conditions were so intolerable that a reasonable person

would have concluded that there was no other choice but to

resign.

By its nature, the inquiry is “a heavily fact-driven

determination.” Levendos, 860 F.2d at 1230. When an

employee meets his or her burden under this test, a

constructive discharge operates as the functional equivalent

of an actual termination. See Sheridan v. E.I. DuPont de

Nemours & Co., 100 F.3d 1061, 1075 (3d Cir. 1996), cert.

denied, 521 U.S. 1129 (1997) (“Under the applicable law, a

plaintiff who voluntarily resigned may maintain a case of

constructive discharge when the employer’s allegedly

discriminatory conduct creates an atmosphere that is the

constructive equivalent of a discharge.”) (emphasis added)

(citations omitted); see also Lopez v. S.B. Thomas, Inc., 831

F.2d 1184, 1188 (2d Cir. 1987) (“When a constructive

discharge is found, an employee’s resignation is treated—

for the purpose of establishing a prima facie case of

employment discrimination—as if the employer had actually

discharged the employee.”).

22

Applying the law to the present case, it is clear that

Suders has raised genuine issues of material fact relating to

her claim of constructive discharge. As we noted with

respect to her claim of a sexually hostile work environment,

the harassment that she claimed to have endured was

persistent, ongoing, and severe. Prendergast made it clear,

through repeated acts of intimidation and his direct

statements, that Suders was not wanted at the station. To

be subjected to Baker’s wrestling routine on a nightly basis,

along with his and Easton’s conversations of bestiality, oral

sex, and genital piercing, would have been intolerable to

any reasonable person. The conduct of the PA State Police

officers at the McConnellsburg barracks drove Suders to

draft a resignation letter.

If the harassment was limited to the type of conduct

described above, we find that disputed issues of fact would

have precluded summary judgment on Suders’s

constructive discharge claim, notwithstanding the PA State

Police’s argument that she failed to avail herself of an

effective complaint procedure. Arguably, Suders made only

one serious attempt on August 18, 1998, to resolve her

problems within the remedial program established by the

PA State Police. Furthermore, the two days that she waited

before resigning did not give her employer a chance to

remedy the problems at the McConnellsburg barracks.

Nevertheless, whether Suders’s work environment was

objectively intolerable and whether a reasonable person in

her position would have felt compelled to resign would

remain open issues.

Any shred of doubt, however, is removed when

considering the events of Suders’s final day on the job.

Drawing all reasonable inferences in her favor, Suders

presented evidence sufficient to enable a reasonable finder

of fact to conclude that the officers attempted to set her up

on a false charge of theft. The concealment of her test

results in a set of drawers in the women’s locker room, the

use of theft detection powder to catch one of their own

inside the station, and the excessive and humiliating

treatment that Suders suffered when she was handcuffed

and photographed all point to a pattern of conduct

designed to find some way to terminate Suders. In that

23

respect, the facts of this case bear a resemblance to

Levendos, where we reversed the district court’s grant of

summary judgment on a claim of constructive discharge, in

part, because plaintiff, a maitre d’ and pastry chef,

presented evidence that her employer had placed wine

bottles in her locker to make it appear as if she was

stealing. 860 F.2d at 1228, 1231. We also believe that this

type of conduct—false charges of theft or other

manufactured ploys designed to incriminate an employee—

is sufficiently similar to the first and second situations

identified in Clowes, 991 F.2d at 1161. In other words,

false charges of misconduct are tantamount to threats or

suggestions of discharge. Attacking someone with a false

charge of theft seems a most effective way of suggesting

that an employee will be fired or should leave voluntarily.

Of course, it is unclear at this stage of the litigation

whether a finder of fact would ultimately conclude that

Suders had no other reasonable alternative but to resign.

That is not, however, our concern in reviewing a motion for

summary judgment. Based on the evidence presented, it is

equally plausible that a jury would conclude that Suders

suffered intolerable sexual harassment and that the officers

set her up on a false theft charge. For these reasons, the

District Court erred in failing to address Suders’s claim of

constructive discharge. We hold that Suders has raised

genuine issues of material fact relating to her claim of

constructive discharge that preclude the grant of summary

judgment.

C. Is a Constructive Discharge a Tangible Employment

Action?

Having found that a grant of summary judgment on

Suders’s claim of constructive discharge would have been

improper, the issue remains whether the presence of the

constructive discharge claim alters the balance of the

District Court’s judgment as to the liability of the PA State

Police. Without analysis, the District Court permitted the

PA State Police to assert the affirmative defense to vicarious

liability and, as a result, to prevail on summary judgment.

As we briefly noted at the outset of our opinion, Ellerth and

Faragher hold that an employer is strictly liable to a

victimized employee for the harassment or discrimination of

24

its supervisors if the harassment or discrimination resulted

in a tangible employment action. In that case, an employer

is precluded from invoking the affirmative defense. If,

however, the harassment or discrimination did not amount

to a tangible employment action, the employer is entitled to

assert the affirmative defense. It seems the District Court

bypassed the critical issue in this case: whether a

constructive discharge, when proved, constitutes a tangible

employment action. We hold that it does.

1. Ellerth and Faragher

An understanding of the Supreme Court’s decisions in

Ellerth and Faragher is essential to the issues on appeal. In

both cases, plaintiffs alleged that they endured near-

constant sexual harassment at the hands of their

supervisors. Ellerth, 524 U.S. at 747; Faragher, 524 U.S. at

780. The harassment included uninvited and offensive

touching, lewd remarks, and crude propositions. Both

plaintiffs also sought to hold their employers liable

pursuant to Title VII for the harassment of their

supervisors. Although the plaintiff in Ellerth had also

alleged that her supervisor threatened to deny her tangible

job benefits if she did not submit to his thinly-veiled

demands for sexual favors, the alleged threats never

materialized.8 Ellerth, 524 U.S. 747-48. Therefore, despite

this variance in the factual allegations, both plaintiffs stood

in the same position with respect to Title VII, that is, they

had properly stated claims for unlawful discrimination

based on a sexually hostile work environment. Id. at 754

(“Because Ellerth’s claim involves only unfulfilled threats, it

should be categorized as a hostile work environment claim

which requires a showing of severe or pervasive conduct.”)

(citations omitted).

The issue in both cases, therefore, was “whether an

employer has vicarious liability when a supervisor creates a

hostile work environment . . . .” Id.; see also Faragher, 524

U.S. at 780 (“This case calls for the identification of the

8. Ellerth’s allegation of a quid pro quo scenario was based in part on an

incident in which her supervisor, while making comments about her

breasts, told her to “loosen up,” warning that “I could make your life very

hard or very easy at Burlington.” Id. at 748 (citations omitted).

25

circumstances under which an employer may be held liable

under Title VII . . . for the acts of a supervisory employee

whose sexual harassment of subordinates has created a

hostile work environment amounting to employment

discrimination.”). Before turning to its analysis, the Court

noted that in the aftermath of its decision in Meritor,

“Courts of Appeals have struggled to derive manageable

standards to govern employer liability for hostile

environment harassment perpetrated by supervisory

employees. . . . [And] the Courts of Appeals have adopted

different approaches.” Faragher, 524 U.S. at 785.9

Therefore, in Ellerth and Faragher, both decided on the

same day, the Court sought to delineate “a uniform and

predictable standard [for vicarious liability] . . . as a matter

of federal law.” Ellerth, 524 U.S. at 754.

In determining the scope of the vicarious liability of an

employer for the sexual harassment of its supervisors, the

Court turned to principles of agency law. Because the Title

VII definition of “employer” includes “any agent,” 42 U.S.C.

§ 2000e(b), the Court noted that “[i]n express terms,

Congress has directed federal courts to interpret Title VII

9. The confusion among the Courts of Appeals was due in part to the

terminology employed in Meritor to describe different types of Title VII

sexual harassment cases. In Meritor, the Court distinguished cases

where an employer demands sexual favors in return for job benefits from

cases where sexually demeaning behavior—not necessarily constituting a

demand for sexual liberties—alters the terms and conditions of

employment. Meritor, 477 U.S. at 65; see also Ellerth, 524 U.S. at 752.

The Court referred to the former as quid pro quo claims and the latter as

hostile environment claims. The purpose of the distinction is simply to

provide a “rough demarcation” between types of sexual harassment.

Ellerth, 524 U.S. at 752.

The Court held that both were cognizable under Title VII, but that a

plaintiff claiming a hostile work environment was required to show

harassment that was severe or pervasive. Meritor, 477 U.S. at 67.

Although the Court did not suggest that these terms should bear on the

issue of vicarious liability, the categories acquired a significance of their

own. Some Courts of Appeals interpreted Meritor to mean that vicarious

liability is appropriate when a plaintiff establishes a quid pro quo claim.

See Ellerth, 524 U.S. at 753 (citing cases). This development encouraged

plaintiffs to state their claims as quid pro quo claims, when in fact, the

distinction was never meant to inform the vicarious liability analysis.

26

based on agency principles.” Ellerth, 524 U.S. at 754. It

also cautioned, however, that “common-law principles may

not be transferrable in all their particulars to Title VII.” Id.

at 764 (quoting Meritor, 477 U.S. at 72). The appropriate

starting point is the Restatement (Second) of Agency (1957)

(the “Restatement”). Meritor, 477 U.S. at 72; Ellerth, 524

U.S. at 755.

The Restatement provision of direct relevance to this

appeal is section 219(2),10 which sets forth several

situations in which an employer may be vicariously liable

for the torts of its employees acting solely for their own

purposes:

(2) A master is not subject to liability for the torts of

his servants acting outside the scope of their

employment, unless:

10. Before turning to § 219(2), the Court left open the possibility of a

limited basis for vicarious liability in § 219(1), which states that “[a]

master is subject to liability for the torts of his servants committed while

acting in the scope of their employment.” Restatement § 219(1) (emphasis

added). An action within the “scope of employment,” is defined by other

sections of the Restatement as one “actuated, at least in part, by a

purpose to serve the [employer].” Restatement §§ 228(1)(c); see also

Ellerth, 524 U.S. at 756-57. The Court recognized that when a supervisor

commits sexual harassment, those actions generally are not actuated by

a purpose to serve the employer. In fact, most employers today, it is

hoped, condemn sexual harassment in the workplace, and the typical

harassing supervisor acts on his or her own animus. See id.; see also

Faragher, 524 U.S. at 793-94; Bouton v. BMW of North America, Inc., 29

F.3d 103, 106-07 (3d Cir. 1994). Nevertheless, the Court left open the

possibility that “a supervisor [may] engage[ ] in unlawful discrimination

with the purpose, mistaken or otherwise, to serve the employer,” for

instance, where an employer has a policy of discouraging women from

seeking advancement. Ellerth, 524 U.S. at 757.

We note that the record presented in Suders’s appeal does not support

the inference that the PA State Police officers were acting in the scope of

their employment. Therefore, § 219(1) is not relevant to this appeal as a

basis for imposing vicarious liability.

We leave aside other possible bases for liability that are not relevant to

Suders’s appeal: cases in which the position of the harasser makes him

an alter ego of the employer; and cases in which the employee

reasonably, but wrongly, believes that the harasser is a supervisor. See

Durham Life Ins. Co. v. Evans, 166 F.3d 139, 152 n.8 (3d Cir. 1999).

27

(a) the master intended the conduct or the

consequences, or

(b) the master was negligent or reckless, or

(c) the conduct violated a non-delegable duty of the

master, or

(d) the servant purported to act or to speak on

behalf of the principal and there was reliance upon

apparent authority, or he was aided in accomplishing

the tort by the existence of the agency relation.

Restatement § 219(2) (emphasis added); see also

Restatement § 219, Comment e. As in Ellerth and Faragher,

Suders does not allege that the PA State Police itself

intended to harass her or that there is a non-delegable duty

at issue. Therefore, subsections (a) and (c) of section 219(2)

are not relevant to this appeal. Section 219(2)(b) might

arguably apply if Suders had alleged that the PA State

Police was negligent in that it “knew or should have known

about” the harassment and failed to stop it. See Ellerth, 524

U.S. at 759. Because she conceded that she resigned only

two days after making her first formal complaint to Smith-

Elliott, Suders implicitly acknowledges that the PA State

Police was not aware of what had transpired at the

McConnellsburg barracks, thus precluding vicarious

liability under subsection (b). Finally, Suders does not

allege that the PA State Police officers purported to exercise

authority that they did not have, and therefore, the

“apparent authority” clause of section 219(2)(d) is also

inapplicable here.

Thus, as in Ellerth and Faragher, vicarious liability must

be premised on the second clause of section 219(2)(d),

which provides for the vicarious liability of an employer for

the tortious acts of an employee when the latter is “aided in

accomplishing the tort by the existence of the agency

relation.” This has come to be known as the “aided in the

agency relation standard.” Ellerth, 524 U.S. at 759. In the

context of Title VII, the Supreme Court recognized that “it

makes sense to hold an employer vicariously liable for some

tortious conduct of a supervisor made possible by abuse of

his supervisory authority, and that the aided-by-agency-

relation principle embodied in § 219(2)(d) of the

28

Restatement provides an appropriate starting point for

determining liability for the kind of harassment presented

here.” Faragher, 524 U.S. at 802.

While the Court found an appropriate starting point in

the aided in the agency relation standard, it also recognized

an inherent definitional problem: broadly speaking, most

workplace harassment occurs because men and women are

brought together as co-workers in close quarters. In that

sense, all harassment is aided by the agency relationship

put in place by employers. The Court cautioned that “[w]ere

this to satisfy the aided in the agency relation standard, an

employer would be subject to vicarious liability not only for

all supervisor harassment, but also for all co-worker

harassment, a result enforced by neither the EEOC nor any

court of appeals to have considered the issue.” Ellerth, 524

U.S. at 760 (emphasis added). In that regard, it is

important to note the clear limitations of the aided in the

agency relation standard as a basis for vicarious liability.

Specifically, the Supreme Court recognized, and we

reiterate here, a clear distinction between supervisors and

co-workers. This recognition derives from the simple fact

that, for purposes of liability, only supervisors, because of

the authority vested in them by their employers and

because of the rank they possess over others, may be aided

by the agency relation in the commission of actionable

harassment.11

11. See Faragher, 524 U.S. at 803. The Court noted that “[r]ecognition of

employer liability when discriminatory misuse of supervisory authority

alters the terms and conditions of a victim’s employment is underscored

by the fact that the employer has a greater opportunity to guard against

misconduct by supervisors than by common workers; employers have

greater opportunity and incentive to screen them, train them, and

monitor their performance.” Id.

In addition to the special relationship between employers and

supervisors, harassment by a supervisor takes on different dimensions

than harassment by a co-worker: “When a fellow employee harasses, the

victim can walk away or tell the offender where to go, but it may be

difficult to offer such responses to a supervisor, whose ‘power to

supervise’—[which may be] to hire and fire, and to set work schedules

and pay rates—does not disappear . . . when he chooses to harass

through insults and offensive gestures rather than directly with threats

29

The distinction between supervisors and co-workers is a

crucial limitation worth reiterating, but by design, it simply

precludes vicarious liability under the aided in the agency

relation standard for a category of would-be harassers, co-

workers. The distinction does not fundamentally alter the

breadth of § 219(2)(d) as written. Without further

qualification, the aided in the agency relation standard

risks holding the employer “automatically” liable for a

supervisor’s harassment without regard to the nature of the

supervisor’s conduct, a result that the Court forbade in

Meritor, 477 U.S. at 72. See also Faragher, 524 U.S. at 804.

Therefore, the Court found that in order to impose vicarious

liability on an employer under the aided in the agency

relation standard, “something more” would be required.

Ellerth, 524 U.S. at 760.12 The Court’s resolution of this

question reflects an intricate balance incorporated into a

complex rule of law with multiple components.

of firing or promises of promotion.” Id. (citing Estrich, Sex at Work, 43

STAN. L. REV. 813, 854 (1991)).

At oral argument, the PA State Police contended that none of the

individual officers had the requisite authority to commit a tangible

employment action because they could not discharge or demote Suders.

We reject this attempt to rein in the scope of a supervisor within the

meaning of Ellerth and Faragher. The record in this case clearly reflected

that (1) Easton was responsible for the day-to-day supervision of the

McConnellsburg barracks; and (2) both Baker and Prendergast had

supervisory duties with respect to “running [their] shift[s].” App. at 215.

No more is required to raise a genuine issue of material fact as to their

supervisory authority.

We are not persuaded, however, that the actions of Smith-Elliot

amounted to actionable harassment. Her supervisory authority over

Suders was not clearly established in the record below. Although her

conduct is relevant, especially to the affirmative defense, we strain to see

how it alone substantiates a claim under Title VII. Nevertheless, in light

of our remand, these issues may be addressed on the merits.

12. See also Faragher, 524 U.S. at 797 (“The proper analysis here, then,

calls not for a mechanical application of indefinite and malleable factors

set forth in the Restatement . . . , but rather an inquiry into the reasons

that would support a conclusion that harassing behavior ought to be

held within the scope of a supervisor’s employment, and the reasons for

the opposite view.”).

30

First, the Court identified a class of supervisory actions

for which more than the mere existence of the agency

relation is unquestionably required for the commission of

the alleged harassment: “when a supervisor takes a

tangible employment action against the subordinate.” Id.

When a supervisor’s actions result in a tangible

employment action, the employer shall be strictly liable for

the actionable harassment of its supervisors, without

regard to an affirmative defense. Id. at 765; Faragher, 524

U.S. at 808.

The Court’s discussion of the attributes of a tangible

employment action is critical to the present appeal. In

broad strokes, a tangible employment action “constitutes a

significant change in employment status.” Ellerth, 524 U.S.

at 761. A tangible employment action is also defined by

reference to a non-exclusive list of representative workplace

actions, “such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or

a decision causing a significant change in benefits.” Id. at

761 (emphasis added); see also Faragher, 524 U.S. at 790.

In most cases, but not always, “a tangible employment

action . . . inflicts direct economic harm.” Finally, a tangible

employment action implicates, in some meaningful way, the

authority of the employer itself: “A tangible employment

decision requires an official act of the enterprise, a

company act. The decision in most cases is documented in

official company records, and may be subject to review by

higher level supervisors. . . . The supervisor often must

obtain the imprimatur of the enterprise and use its internal

processes.” Ellerth, 524 U.S. at 762 (emphases added).

Second, when a supervisor’s harassment does not

amount to a tangible employment action, the Court found

it unclear whether the aided in the agency relation

standard should support vicarious liability. In that regard,

we noted above that the risk of holding the employer

“automatically” liable for the acts of its supervisors was too

great. Id. at 763 (“[W]e are bound by our holding in Meritor

that agency principles constrain the imposition of vicarious

liability in cases of supervisory harassment.”) (citations

omitted). Nevertheless, for actions that fall short of a

tangible employment action, but would otherwise be

31

actionable under Title VII, the Court did not give employers

a free pass from liability. In cases where a supervisor’s

harassment does not result in a tangible employment

action, the Court made available to employers an

affirmative defense, an approach designed to further the

well-recognized Title VII goals of encouraging anti-

harassment policies and effective mechanisms for

addressing employee complaints. See id. at 764; Faragher,

524 U.S. at 806.

Therefore, in both Ellerth and Faragher, the Court

adopted the following holding:

An employer is subject to vicarious liability to a

victimized employee for an actionable hostile

environment created by a supervisor with immediate

(or successively higher) authority over the employee.

When no tangible employment action is taken, a

defending employer may raise an affirmative defense to

liability or damages, subject to proof by a

preponderance of the evidence, see Fed. Rule Civ. Proc.

8(c). The defense comprises two necessary elements: (a)

that the employer exercised reasonable care to prevent

and correct promptly any sexually harassing behavior,

and (b) that the plaintiff employee unreasonably failed

to take advantage of any preventive or corrective

opportunities provided by the employer or to avoid

harm otherwise. . . . No affirmative defense is available,

however, when the supervisor’s harassment culminates

in a tangible employment action, such as discharge,

demotion, or undesirable reassignment.

Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807-08.

2. The Aftermath of Ellerth and Faragher and the

Issue of Constructive Discharge in the Courts of

Appeals

In light of the Supreme Court’s guidance in Ellerth and

Faragher, we reach the critical issue in this case: when a

supervisor’s harassment culminates in a constructive

discharge, as Suders persuasively supported in her

opposition to the motion for summary judgment, may her

employer assert the affirmative defense to liability? As our

analysis above demonstrates, the issue may be reduced

32

more simply to whether a constructive discharge

constitutes a tangible employment action. We recognize

that constructive discharge did not appear in either the

Supreme Court’s discussion pertaining to what constitutes

a tangible employment action or the list of representative

employment actions. This absence is not dispositive,

however, as a claim of constructive discharge was not

before the Court in either of the two cases. Therefore, the

principles underlying a tangible employment action,

together with the relevant agency and Title VII concerns,

should guide our inquiry.

The PA State Police argues on appeal that a constructive

discharge does not constitute a tangible employment action

and that its position is supported by case law from other

jurisdictions. We recognize a division among the Courts of

Appeals as to this issue. A survey of the courts that have

addressed the issue reveals a number of different

approaches.

The PA State Police correctly notes that the Court of

Appeals for the Second Circuit has held that a “constructive

discharge does not constitute a ‘tangible employment

action,’ as that term is used in Ellerth and Faragher.”

Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 294

(2d Cir. 1999), cert. denied, 529 U.S. 1107 (2000). In

Caridad, the court based its decision on three grounds.

First, the court noted that “[c]o-workers, as well as

supervisors can cause the constructive discharge of an

employee.” Id. Second, “unlike demotion, discharge, or

similar economic sanctions, an employee’s constructive

discharge is not ratified or approved by the employer,” id.,

which would seem to contravene the Supreme Court’s

observation in Ellerth, that a tangible employment generally

requires a “a company act.” 524 U.S. at 762. Third, the

Second Circuit suggested that in Ellerth, the Supreme

Court implicitly addressed the issue of constructive

discharge and that its holding does not permit the

conclusion that such action constitutes a tangible

employment action:

Moreover, the facts of Ellerth, where the plaintiff, like

Caridad, did not complain of the harassment prior to

quitting her job, indicate that constructive discharge is

33

not a tangible employment action depriving the

employer of the availability of the affirmative defense to

Title VII liability. Ellerth alleged that she had been

constructively discharged as a result of sexual

harassment by her supervisor . . . ; in remanding the

case for a determination of whether the employer could

make out an affirmative defense, the Supreme Court

noted that ‘Ellerth has not alleged she suffered a

tangible employment action at the hands of [her

supervisor].’13 Caridad, 191 F.3d at 294-95 (citations

omitted).

Recently, the Court of Appeals for the Sixth Circuit, in an

unpublished opinion, has adopted the holding in Caridad

that a “claim of constructive discharge is not a tangible

employment action for purposes of Faragher and

Burlington.” Turner v. Dowbrands, Inc., No. 99-3984, 2000

WL 924599, at *1 (6th Cir. June 26, 2000); see also Keaton

v. State of Ohio, No. C2-00-1248, 2002 WL 1580567, at *9

(S.D. Ohio June 3, 2002).14 In addition, other district courts

13. We believe that the particular factual circumstances in Caridad shed

some light on the court’s decision there and distinguish that case from

the present. Plaintiff in that case had consulted defendant’s Director of

Affirmative Action. She told the Director that she was being sexually

harassed, without telling him the details of any incidents. The Director

responded that it would be impossible to take further action without the

details of the sexual harassment to which she alluded. Even still, the

Director offered to transfer plaintiff to another shift, but she declined

this and the offer to investigate further.

The court underscored plaintiff ’s reluctance to take advantage of the

remedial measures in place, noting that plaintiff “did not complain of the

harassment prior to quitting her job,” thus indicating that “a

constructive discharge is not a tangible employment action.” Caridad,

191 F.3d at 294. We believe that all of these probative facts as to

plaintiff ’s failure to provide details and to cooperate with the Director are

clearly relevant, but more to the issue of whether there was a

constructive discharge in the first place. We do not believe that these

facts should bear upon the question of whether a constructive discharge

would constitute a tangible employment action.

14. Several district courts have also adopted the holding in Caridad for

substantially the same reasons advanced by the Second Circuit. See

Scott v. Ameritex Yarn, 72 F. Supp. 2d 587, 594 (D.S.C. 1999);

Desmarteau v. City of Wichita, Kansas, 64 F. Supp. 2d 1067, 1079 (D.

Kan. 1999); Alberter v. McDonald’s Corp., 70 F. Supp. 2d 1138, 1147 (D.

Nev. 1999).

34

aligning themselves with the Second Circuit have rejected

the notion that a constructive discharge constitutes a

tangible employment action on other grounds. For instance,

in Powell v. Morris, the court held that a constructive

discharge is not a tangible employment action because if

the Supreme Court had intended to include constructive

discharge, it “could have easily listed ‘constructive

discharge’ along with the other incidents as constituting a

tangible employment action.” 37 F. Supp. 2d 1011, 1019

(S.D. Ohio 1999).

In contrast to the Second and Sixth Circuits, the Court of

Appeals for the Eighth Circuit held that a constructive

discharge, when proved, would constitute a tangible

employment action. See Jaros v. LodgeNet Entertainment

Corp., 294 F.3d 960, 966 (8th Cir. 2002) (“The district court

did not err in its instruction, since a constructive discharge

constitutes a tangible employment action which prevents

an employer from utilizing the affirmative defense.”)

(citations omitted); Jackson v. Arkansas Dep’t of Ed., 272

F.3d 1020, 1026 (8th Cir. 2001) (“If [plaintiff] was in fact

constructively discharged, then the constructive discharge

would constitute a tangible employment action and prevent

the [defendant] from utilizing the affirmative defense.”), cert.

denied, 122 S. Ct. 2366 (2002). The Eighth Circuit,

however, did not address the rationales advanced by the

Second Circuit in Caridad.

Among the district courts, the leading case for the

position contrary to Caridad is Cherry v. Menard, Inc., 101

F. Supp. 2d 1160 (N.D. Iowa 2000). In a well-reasoned

decision, the United States District Court for the Northern

District of Iowa, presented a compelling counterpoint to the

Second Circuit’s decision in Caridad. In Cherry, the court

found that “none of [the] reasons [advanced in Caridad]

stands up to a probing scrutiny,” and that “the court is not

persuaded by [defendant’s] argument, that a constructive

discharge does not constitute a ‘tangible employment

action’ as defined in Ellerth/Faragher.” Id. at 1171, 1176.

Other district courts have followed Jaros and Cherry. See

Vasquez v. Atrium Door & Window Co. of Arizona, Inc., 218

F. Supp. 2d 1139, 1142 (D. Ariz. 2002) (“After careful

consideration of the issue, the Court finds that a

35

constructive discharge constitutes a tangible employment

action.”); Haworth v. Romania Imported Motors, Inc., No. CV

00-1721, 2001 WL 34041893, at *8 (D. Or. Dec. 27, 2001)

(“Under the reasoning provided by the Supreme Court in

Ellerth/Faragher, constructive discharge constitutes a

tangible employment action as the Court contemplated the

term.”); Taylor v. United Regional Health Care System, Inc.,

No. CIV. A. 700CV145-R, 2001 WL 1012803, at *6 (N.D.

Tex. Aug. 14, 2001) (“[C]onstructive discharge and a failure

to promote are ‘tangible employment actions’ for the

purposes of Title VII.”).

Other Courts of Appeals have noted the issue, but

expressly declined to rule on it. See Kohler v. Inter-Tel

Technologies, 244 F.3d 1167, 1179 n.8 (9th Cir. 2001) (“We

have not yet determined whether a constructive discharge

is a tangible employment action. . . . We do not reach this

issue in this case because Kohler has waived her

constructive discharge claim.”); Mosher v. Dollar Tree

Stores, Inc., 240 F.3d 662, 666-667 (7th Cir.) (“First, it

should be noted that we have yet to determine whether a

constructive discharge is a tangible employment action

within the meaning of Ellerth and Faragher. . . . However,

we need not settle that issue today, for we find that

[plaintiff] did not raise a genuine issue of material fact that

she was constructively discharged.”) (citations omitted),

cert. denied, 534 U.S. 1041 (2001).

3. A Constructive Discharge, When Proved,

Constitutes a Tangible Employment Action within

the Meaning of Ellerth and Faragher

Although we are cognizant of this wide divergence of

views among the Courts of Appeals, we disagree with the PA

State Police’s argument that a constructive discharge is not

a tangible employment action. Our decision is based on the

following observations: (1) although we have not definitively

ruled on the issue, our recent decisions have suggested

that a constructive discharge constitutes a tangible

employment action; (2) none of the grounds advanced by

the Caridad line of cases persuades us that a constructive

discharge should not be held to constitute a tangible

employment action; and (3) holding an employer strictly

liable for a constructive discharge resulting from the

36

actionable harassment of its supervisors more faithfully

adheres to the policy objectives set forth in Ellerth and

Faragher and to our own Title VII jurisprudence.

At the outset, we note that although the present appeal

marks the first time that we definitively address the issue

of constructive discharge within the framework of Ellerth

and Faragher, we are not writing on a blank slate. In

Cardenas v. Massey, 269 F.3d 251, 266-67 (3d Cir. 2001),

plaintiff alleged that he was subjected to a racially hostile

work environment, resulting in his constructive discharge.

In reversing the grant of summary judgment on plaintiff ’s

hostile work environment claim, we noted that “[i]f

Cardenas convinces a jury that he was victimized by a

hostile work environment created by [defendants], it is

certainly possible that the same jury would find that the

hostile environment was severe enough to have precipitated

Cardenas’ resignation, i.e., a constructive discharge.” Id. We

also recognized that “[t]here appears to be some

disagreement on whether constructive discharge constitutes

a tangible employment action.” Id. at 267 n.10.

Nevertheless, we felt that in light of the particular facts and

circumstances in Cardenas, the better result was to “leave

this issue to the District Court in the first instance. For

purposes of this discussion, we assume a constructive

discharge is a tangible employment action.” Id.

In addition, in Durham Life, 166 F.3d at 149 n.5, plaintiff

also alleged sexual harassment and a constructive

discharge. In that case, a majority of the panel was

achieved by the concurrence of two of our colleagues. In

discussing the reasons for the different perspectives of the

panel members, the Court noted that “[Plaintiff] was the

subject of a tangible adverse employment action, the

District Court found that her supervisors were responsible

for her constructive discharge and the District Court

returned a verdict compensating her for the damages she

suffered.” Id. Furthermore, we suggested in clear terms that

a constructive discharge would constitute a tangible

employment action: “In a case such as this one, where

[plaintiff] was constructively discharged by her supervisors’

action after their own actionable behavior, the holdings and

instruction of Ellerth and Faragher are clear: the employer,

37

Durham Life Insurance Company, is automatically liable

and no affirmative defense is available.”15 Id. Despite this

clear suggestion, our holding in Durham Life was ultimately

based on employment actions unrelated to the constructive

discharge—that is, we found that plaintiff had met her

burden at trial of demonstrating a tangible employment

action based on, inter alia, evidence that her supervisor had

(1) dismissed her secretary; (2) removed files from her office

which were vital to her work; and (3) allocated a

disproportionate share of less lucrative assignments to her.

Id. at 153-54. Therefore, notwithstanding the suggestions

in Cardenas and Durham Life, one court noted in April

2002, that as to the issue of whether a constructive

discharge constitutes a tangible employment action, “the

Third Circuit explicitly has declined to resolve this issue.”

Evans v. Nine West Group, Inc., No. CIV. A. 00-4850, 2002

WL 550477, at *9 (E.D. Pa. Apr. 15, 2002). We seek to

resolve this issue today and to elaborate on the statements

that we have already made as to the significance of a

constructive discharge in the Ellerth and Faragher analysis.

In addition to our earlier suggestions in Cardenas and

Durham Life, we are not persuaded that the grounds

advanced in the Caridad line of cases compel the holding

that a constructive discharge does not constitute a tangible

employment action. We address first the argument in

Powell, 37 F. Supp. 2d at 1019, that there is some meaning

in the Supreme Court’s exclusion of constructive discharge

from the list of representative tangible employment actions.

We disagree.

The Supreme Court made it clear that it intended to

provide a non-exclusive list of clear cases of tangible

employment actions, on the one hand, and broader

categories, on the other. The Supreme Court stated that a

“tangible employment action constitutes a significant

15. We also stated that “[u]nder Durham’s theory, any substantial

adverse action, such as a demotion in authority and pay, would not be

a tangible adverse employment action if it led the affected employee to

quit before the demotion took effect. This is contrary to Title VII doctrine,

which recognizes a constructive discharge under such circumstances.”

Durham Life, 166 F.3d at 153.

38

change in employment status, such as hiring, firing, failing

to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change

in benefits.” Ellerth 524 U.S. at 761 (emphasis added).

Several aspects of this definition support our conclusion

that it was intended to be non-exhaustive. As other courts

have noted, the use of the qualifier “such as” indicates that

tangible employment actions are not limited to those that

follow the qualifier. See Jin v. Metropolitan Life Ins. Co., 310

F.3d 84, 93 (2d Cir. 2002); Cherry, 101 F. Supp. 2d at

1175; Vasquez, 218 F. Supp. 2d at 1142-43. In addition,

we observe that the list begins with specific actions that

could constitute a tangible employment action—hiring,

firing, and failing to promote—and ends with broader

categories that could describe many different workplace

actions—reassignment with significantly different

responsibilities, or a decision causing a significant change

in benefits. By employing this structural technique, the

Supreme Court recognized a simple reality of harassment in

the modern workplace: tangible employment actions often

take the form of subtle discrimination not easily categorized

as a formal discharge or demotion.

Also, for the proposition that a tangible employment

action is a flexible concept, not limited to the actions

mentioned in Ellerth, we need look no further than our

recent decision in Durham Life. There, as described above,

we determined that a tangible employment action resulted

where a supervisor (1) dismissed an employee’s secretary,

(2) removed her essential work files, and (3) allocated to her

a disproportionate share of less lucrative assignments. See

Durham Life, 166 F.3d at 153-54. Of course, none of these

actions appear in the list set forth in Ellerth, which is

entirely consistent with our finding that the Supreme Court

intended to set forth a non-exclusive list of representative

actions. See id. at 144 (“The concept of a tangible adverse

employment action is not limited to changes in

compensation, although Evans’s pay was certainly affected

by the actions taken against her. ‘Tangible adverse

employment action’ includes the loss of significant job

benefits or characteristics, such as the resources necessary

for an employee to do his or her job . . . .”).

39

Next, we address the court’s reasoning in Caridad that

the Supreme Court implicitly addressed and rejected

constructive discharge as falling within the ambit of a

tangible employment action. The court’s reasoning was

based on the fact that although plaintiff in Ellerth had

initially alleged a claim of constructive discharge, the

Supreme Court concluded that “[plaintiff] has not alleged

she suffered a tangible employment action at the hands of

[her supervisor].” Ellerth, 524 U.S. at 766. Based on our

review of the procedural history of the case, however, we

find that the claim of constructive discharge was never

before the Court when it ruled. While it is true that plaintiff

initially pleaded a claim of constructive discharge, the trial

judge granted summary judgment as to that claim, noting

that “it can not be said that [defendant] made [plaintiff ’s]

working conditions intolerable forcing her into an

involuntary resignation.” Ellerth v. Burlington Industries,

Inc., 912 F. Supp. 1101, 1124 (N.D. Ill. 1996). When the

matter reached the Seventh Circuit, the focus of the appeal

was limited to plaintiff ’s claims of quid pro quo harassment

and hostile environment harassment. See Jansen v.

Packaging Corp. of America, 123 F.3d 490, 494 (7th Cir.

1997) (en banc) (consolidated with Ellerth).

By the time the matter reached the Supreme Court, the

issues had narrowed even further: “The question presented

on certiorari is whether [plaintiff] can state a claim of quid

pro quo harassment, but the issue of real concern to the

parties is whether Burlington has vicarious liability for

[defendant’s] alleged misconduct, rather than liability

limited to its own negligence.” Ellerth, 524 U.S. at 753.

Simply put, plaintiff ’s claim of constructive discharge was

never before the Supreme Court and, in fact, the Seventh

Circuit barely addressed it. See Cherry, 101 F. Supp. 2d at

1174. Our conclusion is supported by the fact that

constructive discharge does not appear anywhere in the

Supreme Court’s analysis. Therefore, we agree with the

court in Cherry, that “the Ellerth decision left entirely open

the question of whether a constructive discharge resulting

from conduct of a supervisor can constitute the sort of

‘tangible employment action’ that deprives an employer of

the Ellerth/Faragher defense.” Id. at 1175.

40

In addition, the court in Caridad held that because “[c]o-

workers, as well as supervisors, can cause the constructive

discharge of an employee,” it should not be construed as a

tangible employment action. 191 F.3d at 294. This

observation is beside the point. The Supreme Court

recognized that many tangible employment actions may be

perpetrated by either supervisors or co-workers. After all,

supervisors and co-workers alike can make obscene

gestures, lewd comments, sexual propositions, or steal

another employee’s clients. For the sake of recognizing

reasonable limits to the aided in the agency relation

standard, however, the Supreme Court made the

categorical distinction between co-workers and supervisors

and imposed vicarious liability only with respect to the

actions of the latter. Furthermore, the Court noted that

most, but not all, tangible employment actions are usually

committed by supervisors. Ellerth, 524 U.S. at 762 (“As a

general proposition, only a supervisor, or other person

acting with the authority of the company, can cause this

sort of injury.”) (emphasis added). It is of no consequence

that constructive discharge may be caused by a co-worker

because we are only concerned here with that which is

caused by a supervisor. And in that regard, our inquiry is

not whether an action may be caused by a co-worker or

supervisor, it is whether the supervisor’s action constitutes

a “significant change in employment status.” Id. at 761.16

We turn to the final rationale advanced by the court in

Caridad, the notion that, unlike termination or demotion,

16. As the court observed in Cherry, this argument “appears to be

backwards: The panel in Caridad reasoned that a ‘tangible employment

action’ must be a harm that only a supervisor can inflict, when the

Supreme Court defined a ‘tangible employment action’ in terms of the

harm it can inflict, observed that ordinarily, but not exclusively, only a

supervisor can inflict such harm . . . , and then concluded that the

‘aided in the agency relation’ standard ‘will always be met when a

supervisor takes a tangible employment action against a subordinate.’

Consequently, this court concludes that, under the Supreme Court’s

definition, it is the nature of the harm inflicted by a supervisor—that is,

‘a significant change in employment status’ or ‘inflict[ion] of a direct

economic harm’—that determines whether the supervisor’s action is a

‘tangible employment action,’ not whether a co-worker could also inflict

such harm.” 101 F. Supp. 2d at 1172-73 (citations omitted).

41

constructive discharge is not ratified by the employer. It is

true that in a constructive discharge situation, it is the

employee who ultimately decides that he or she has no

alternative but to resign. In that sense, as regards the

specific event which terminates the employer-employee

relationship, a constructive discharge may not bear the

“imprimatur of the enterprise,” Ellerth, 524 U.S. at 762, in

the same way as a formal termination. We are not

persuaded, however, that this distinction compels the

conclusion that a constructive discharge is not a tangible

employment action.

First, this view contravenes the fundamental principle of

our jurisprudence that a constructive discharge, when

proved, operates as the functional equivalent of an actual

termination. Sheridan, 100 F.3d at 1075 (finding that a

constructive discharge is the “constructive equivalent of a

[formal] discharge”). This principle recognizes that when a

plaintiff-employee successfully demonstrates that the work

environment created by an employer was so intolerable that

he or she had no choice but to resign, the constructive

discharge becomes, for all intents and purposes, the act of

the employer. There are sound reasons for adopting this

legal construct. For instance, when a plaintiff-employee

meets the stringent test of showing a constructive

discharge, the direct economic harm suffered is identical to

that of a formally discharged employee. Cherry, 101 F.

Supp. 2d at 1173 (“constructive discharge constitutes

precisely the same sort of ‘significant change in

employment status’ and inflicts precisely the same sort of

‘economic harm’ as any other ‘firing.’ ”); see also Vasquez,

218 F. Supp. 2d at 1142-43.

In addition, to the extent that Caridad suggested that

only an action ratified by the employer and documented in

official records qualifies as a tangible employment action,

we disagree. As another panel of the Second Circuit noted:

“though a tangible employment action ‘in most cases is

documented in official company records, and may be

subject to review by higher level supervisors,’ the Supreme

Court did not require such conditions in all cases.” Jin, 310

F.3d at 98 (emphases in original) (quoting Ellerth, 524 U.S.

at 762). As we noted above, tangible employment actions

42

defy neat categories and an attempt to list them all would

be futile. They occur within the context of each unique

factual situation. Therefore, we agree that tangible

employment actions are often ratified by an employer, and

we should look first to official company records for relevant

evidence. But by no means is a tangible employment action

precluded solely because no documentation of a company

act exists. Ellerth, 524 U.S. at 762.

In fact, in other Title VII contexts, courts have explicitly

recognized that some of the most pernicious forms of

workplace harassment, clearly amounting to tangible

employment actions, are often not accompanied by official

company acts. This is especially true in quid pro quo cases

where a victimized employee submits to a supervisor’s

demands for sexual favors in return for job benefits, such

as continued employment. In these cases, it is rare that a

supervisor’s demands for sexual liberties, and the

corresponding threat of adverse consequences for failure to

submit, will be documented anywhere in company records.

Therefore, a rule requiring a victimized employee who

submits to a supervisor’s indecent demand for sexual

favors to prove an official company act in order to establish

a tangible employment action strains common sense. As

the Second Circuit has held, the more sensible approach in

the quid pro quo context is to recognize that, by his or her

actions, a supervisor invokes the official authority of the

enterprise:

Finally, MetLife relies on a statement in Ellerth that “a

tangible employment decision requires an official act of

the enterprise, a company act.” But, assuming Jin’s

allegations to be true, Morabito’s use of his supervisory

authority to require Jin’s submission was, for Title VII

purposes, the act of the employer. This is because

Morabito brought “the official power of the enterprise to

bear” on Jin by explicitly threatening to fire her if she

did not submit and then allowing her to retain her job

based on her submission.

Jin, 310 F.3d at 98 (citations omitted).

This rationale is equally applicable in the context of

constructive discharge. By focusing on the actions of a

43

supervisor and on the type of injury to a plaintiff, it

becomes clear that when a supervisor creates a hostile

work environment so severe that an employee has no

alternative but to resign, the official power of the enterprise

is brought to bear on the constructive discharge.17 In that

regard, we find no sound justification for requiring more in

constructive discharge cases than in quid pro quo cases in

order to find a tangible employment action: an employee’s

constructive discharge is no more unilateral an act of the

victimized employee and no less coerced by the employer

than submission to sexual advances in a quid pro quo

situation. Therefore, we reject any rule requiring a plaintiff-

employee alleging a constructive discharge to show an

official company act in order to prove a tangible

employment action.

In any event, we note that, as a practical matter, a

constructive discharge is often ratified by the employer. In

the appeal of Ellerth to the Seventh Circuit, Chief Judge

Posner remarked in his concurring opinion that “[t]he

difficult borderline case is that of constructive termination

precipitated by a threat. The termination will look to the

supervisor’s superiors like a voluntary quit. But since there

is always some paperwork involved in an employee’s

quitting, the higher-ups in the company will have some

ability to monitor constructive discharges, and I would

therefore impose strict liability in such cases.” Jansen, 123

F.3d at 515 (emphases added). The present case is a perfect

illustration of this proposition. While it is true that Baker’s

repetition of the wrestling move five to ten times per

evening might not be reflected in official PA State Police

records, the circumstances of the allegedly false charge of

theft are quite likely to be detailed in documents. Suders

was handcuffed, photographed, and detained as a suspect,

events that surely leave a paper trail. At a trial on the

merits, the significance of these documented events may be

17. See generally Kerri L. Bauchner, From Pig in a Parlor to Boar in a

Boardroom: Why Ellerth Isn’t Working and How Other Ideological Models

Can Help Reconceptualize the Law of Sexual Harassment, 8 COLUM. J.

GENDER & L. 303, 331-32 (1999) (advocating a competing interests

approach to sexual harassment cases which would give due regard to

the injury suffered by a plaintiff).

44

judged by weighing Suders’s testimony against that of the

PA State Police officers. Thus, the documents surrounding

Suders’s departure may indeed reflect the imprimatur of

the PA State Police to the extent that its supervising officers

were trying to force Suders to quit, and we believe that she

should have the opportunity to prove that. Moreover,

because a constructive discharge will necessarily involve

the termination of an employment relationship, the

employer will be on notice and have the opportunity to

determine the cause of the separation from employment.

This too may be an appropriate line of inquiry for trial.

For these reasons, we are not persuaded by any of the

grounds advanced by the Caridad line of cases for the

proposition that a constructive discharge does not

constitute a tangible employment action.

Lastly, we find that placing a constructive discharge

within the rubric of tangible employment actions more

faithfully adheres to the Supreme Court’s guidance in

Ellerth and Faragher and to our Title VII jurisprudence. At

the outset, we reiterate that when a plaintiff-employee

satisfies his or her burden of proving a constructive

discharge, we view the resignation as the functional

equivalent of an actual termination. See Sheridan, 100 F.3d

at 1075. As noted above, we have not found any sound

justifications for treating a constructive discharge

differently from an actual termination in the tangible

employment action analysis.

As we also noted above, a constructive discharge has, in

most critical respects, the primary attributes of a tangible

employment action, as defined in Ellerth and Faragher. In

the same way as a formal discharge, a constructive

discharge “constitutes a significant change in employment

status,” by ending the employer-employee relationship.

Ellerth, 524 U.S. at 761. A constructive discharge also

inflicts the same type of “direct economic harm.” Id. at 762;

see also Cherry, 101 F. Supp. 2d at 1173; Vasquez, 218 F.

Supp. 2d at 1143.

Turning to our Title VII jurisprudence, we noted in

Andrews that “Congress designed Title VII to prevent the

perpetuation of stereotypes and a sense of degradation

45

which serve to close or discourage employment

opportunities for women. . . . Such an objective can only be

achieved if women are allowed to work without being

harassed. Women who know that they will be subject to

harassment will be deterred from joining the work force or

accepting certain jobs.”18 895 F.2d at 1483. We also

recognized that, “[r]egrettably, however, this in no way

suggests that discrimination based upon an individual’s

race, gender, or age is near an end. Discrimination

continues to pollute the social and economic mainstream of

American life, and is often simply masked in more subtle

forms.” Aman, 85 F.3d at 1081-82. In light of both the

policies and the realities of workplace discrimination, we

have always been mindful of the consequences and the

intricate balance of incentives when adopting rules in the

context of Title VII. See Durham Life, 166 F.3d at 154

(holding that requiring plaintiffs to report the first instance

of discriminatory conduct “would have the perverse effect of

putting a greater burden on plaintiffs who had extensive

evidence of discrimination.”); see also Kolstad v. American

Dental Ass’n, 527 U.S. 526, 544 (1999) (“Applying the

Restatement of Agency’s ‘scope of employment’ rule in the

Title VII punitive damages context, moreover, would reduce

the incentive for employers to implement antidiscrimination

programs.”); Robinson v. Shell Oil Co., 519 U.S. 337, 346

(1997) (noting that the “exclusion of former employees from

the protection of § 704(a) would undermine the effectiveness

of Title VII by allowing the threat of postemployment

retaliation to deter victims of discrimination from

complaining to the EEOC.”).

In that regard, we emphasize that removing constructive

discharge from the category of tangible employment actions

could have the perverse effect of discouraging an employer

from actively pursuing remedial measures and of possibly

encouraging intensified harassment. When confronted with

allegations of sexual harassment, employers have a wide

range of options, including terminating the offending

18. See also Faragher, 524 U.S. at 805-06 (noting that primary purpose

of Title VII is not to provide redress, but rather to avoid harm). This

purpose served as the basis for making an affirmative defense available

to an employer in the absence of a tangible employment action.

46

supervisor or stepping in and removing the victim from the

hostile work environment by, for example, a transfer. But

as our ever expanding Title VII caseload shows, there are

instances when employers ignore these two alternatives and

opt instead to either turn a blind eye or let their internal

procedures run their course while the hostile work

environment remains unchanged. With these realities in

mind, if we were to hold that a constructive discharge does

not constitute a tangible employment action, employers

would undoubtedly catch on to the availability of the

affirmative defense even if the victimized employee resigns

from objectively intolerable conditions at work. Under such

a rule, the temptation of employers to preserve their

affirmative defense would be overwhelming in many

situations. Some employers might wish for an employee to

quit voluntarily; others might even tacitly approve of

increased harassment to achieve that result. In any event,

the benefits of stepping in to remedy the hostile work

environment are measurably cloudier.

These are exactly the sorts of incentives that courts

should take pains to avoid. If anything, our decision should

be guided by the paramount policy objectives set forth in

Ellerth and Faragher: “to prevent sexual harassment from

occurring . . . [by] informing employees of their right to

raise and how to raise the issue of harassment,” and “to

encourage victims of harassment to come forward [without

requiring] a victim to complain first to the offending

supervisor.” Faragher, 524 U.S. at 806 (quotations and

citations omitted). By holding that a constructive discharge

constitutes a tangible employment action, we effectively

encourage employers to be watchful of sexual harassment

in their workplaces and to remedy complaints at the

earliest possible moment; otherwise, they risk losing the

benefit of the affirmative defense should victimized

employees feel compelled to resign.

Nor do we believe that our holding today discourages

responsible behavior on the part of victimized employees.

Because of the stringent test for proving constructive

discharge, as set forth in part III.B, supra, it is highly

unlikely that employees will walk off the job at the first sign

of harassment and expect to prevail under Title VII.

47

Because plaintiffs are expected to show intolerable

conditions and reasonable responses to the alleged

harassment, the strategy of resigning and then mixing

constructive discharge with Title VII claims will ultimately

fail in the absence of a genuine constructive discharge

situation.

For the reasons set forth above, we hold that a

constructive discharge, when proved, constitutes a tangible

employment action within the meaning of Ellerth and

Faragher. With respect to her appeal, we hold that, because

Suders raised genuine issues of material fact as to her

claim of constructive discharge, the PA State Police is

precluded from asserting the affirmative defense to liability

advanced in support of its motion for summary judgment.

These issues require a trial on the merits. Should Suders

persuade the finder of fact that she was constructively

discharged, the PA State Police shall be strictly liable for

any actionable hostile environment. If Suders does not

prevail on her claim of constructive discharge, the PA State

Police may be entitled to invoke the affirmative defense. In

any event, we will reverse the District Court’s grant of

summary judgment and remand for a disposition on the

merits in accordance with our opinion.

IV.

In summary, we concur with the District Court insofar as

it held that Suders had raised genuine issues of material

fact as to her claim of a sexually hostile work environment

in violation of Title VII. Nevertheless, the District Court

improperly granted summary judgment in favor of the PA

State Police on the basis of the affirmative defense in Ellerth

and Faragher. Specifically, we hold that the District Court

erred in failing to address Suders’s claim of constructive

discharge. On the basis of the record presented to the trial

court, we hold that Suders raised genuine issues of

material fact as to her claim of constructive discharge.

Finally, we hold that a constructive discharge, when proved

in accordance with the requirements set forth above in part

III.B, supra, constitutes a tangible employment action

within the meaning of Ellerth and Faragher. This precludes

48

the PA State Police’s assertion of the affirmative defense in

its motion for summary judgment.

In closing, we are cognizant of the possibility that our

decision today may raise thorny evidentiary issues in the

trial courts. In part III.B, supra, we noted that a plaintiff

alleging a constructive discharge must establish the

convergence of two factors: (1) harassment or

discrimination so intolerable that a reasonable person in

the same position would have felt compelled to resign; and

(2) the employee’s decision to resign was reasonable under

the circumstances. As to the second factor, whether the

employee explored alternative avenues to resolve the alleged

harassment may be relevant, although a failure to do so

may not prove fatal to the employee’s claim. Conceivably,

then, it may be relevant to a claim of constructive discharge

whether an employer had an effective remedial scheme in

place, whether an employer attempted to investigate, or

otherwise to address, plaintiff ’s complaints, and whether

plaintiff took advantage of alternatives offered by

antiharassment programs. These are, of course, the same

considerations relevant to the affirmative defense in Ellerth

and Faragher.

The difficulty is that once a plaintiff proves a tangible

employment action by establishing a constructive

discharge, Ellerth and Faragher unequivocally hold that the

employer is strictly liable for any actionable harassment

without regard to the affirmative defense. Ellerth, 524 U.S.

at 765; Faragher, 524 U.S. at 808. Therefore, at the point

at which a constructive discharge is proved, the

considerations pertaining to the affirmative defense become

irrelevant. Durham Life, 166 F.3d at 149 (“Although

Durham presents extensive evidence and argument about

its antiharassment policies, we find that they are not

relevant to this case because Evans’s supervisors took

tangible adverse employment action against her.”) (emphasis

added). Consequently, there is a substantial risk that the

test for constructive discharge may become a back door for

the introduction of evidence amounting to the assertion of

the affirmative defense to liability.

In a similar context, we noted the problems inherent in

such a counterfactual inquiry. Defendant in Durham Life

49

argued that, even assuming plaintiff could prove a tangible

employment action, the victimized employee should have

reported the first instance of harassment, which would

have allowed it to investigate and remedy the problem. 166

F.3d at 154. In response, we stated:

[W]e decline to investigate whether, if Evans had

complained early on, the sexual harassment policy at

Durham would have prevented the tangible adverse

actions that occurred afterwards. The difficulty of

making such a counterfactual inquiry counsels against

injecting this question into already-complex

discrimination cases . . . . [W]ere we to allow an

affirmative defense every time an employer could argue

that the plaintiff had some non-tangible notice of

discrimination before adverse action was taken against

her, the Ellerth/Faragher distinction between cases

with tangible adverse action and cases without such

action would become hopelessly confused.

Id. (emphasis in original).

In the context of constructive discharge cases, however,

there may be instances where District Courts have to

engage in this complex inquiry. It is difficult to generalize

about constructive discharge cases. The comparative merit,

quantum of proof, and factual setting will differ markedly

from case to case. Discovery and trial testimony may reveal

any of the following: substantial proof of constructive

discharge, the absence of an effective remedial program,19

or an otherwise effective antiharassment program that

failed to address a particular plaintiff ’s complaints. In

those cases, courts should carefully weigh the relevance of

19. See Faragher, 524 U.S. at 808 (“While the City would have an

opportunity to raise an affirmative defense if there were any serious

prospect of its presenting one, it appears from the record that any such

avenue is closed. The District Court found that the City had entirely

failed to disseminate its policy against sexual harassment among the

beach employees and that its officials made no attempt to keep track of

the conduct of supervisors like Terry and Simpson. . . . Under such

circumstances, we hold as a matter of law that the City could not be

found to have exercised reasonable care to prevent the supervisor’s

harassing conduct.”).

50

evidence relating to an employer’s antiharassment program,

in light of our observations in Durham Life.

Conversely, the evidentiary record may reveal scant

support for a constructive discharge; or the evidence, while

falling short of compelling, may raise genuine issues of

material fact relating to the constructive discharge. In those

cases, some evidence regarding an employer’s

antiharassment program or an employee’s response to the

alleged harassment may be admissible for the limited

purpose of determining whether a constructive discharge

has occurred.

In the final analysis, we rely on the wisdom and expertise

of trial judges to exercise their gatekeeping authority when

assessing whether all, some, or none of the evidence

relating to employers’ antiharassment programs and to

employees’ exploration of alternative avenues warrants

introduction at trial. Of course, there may be instances

when some evidence of this kind is admitted, yet the

plaintiff ultimately prevails on a constructive discharge

claim. In these cases, instructions to the jury regarding the

admissibility of such evidence for limited purposes may

cure any harm caused by its earlier introduction. Clear and

concise jury verdict forms may also diminish the risk of

confusion. Although these are complex issues, they are

similar in kind to admissibility questions that trial judges

are asked to decide on a regular basis.

For the reasons set forth above, we will reverse the

judgment of the District Court as to Suders’s Title VII claim

against the PA State Police, and we will remand the case for

a disposition of that claim on the merits consistent with our

opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit