Pennsylvania State Police v. Suders

In March 1998,the Pennsylvania State Police (PSP)hired plaintiff-
respondent Suders to work as a police communications operator for
the McConnellsburg barracks,where her male supervisors subjected
her to a continuous barrage of sexual harassment.In June 1998,
Suders told the PSP ' s Equal Employment Opportunity Officer,Vir-
ginia Smith-Elliott,that she might need help,but neither woman
followed up on the conversation.Two months later,Suders contacted
Smith-Elliott again,this time reporting that she was being harassed
and was afraid.Smith-Elliott told Suders to file a complaint,but did
not tell her how to obtain the necessary form.Two days later,Sud-
ers 'supervisors arrested her for theft of her own computer-skills
exam papers.Suders had removed the papers after concluding that
the supervisors had falsely reported that she had repeatedly failed,
when in fact,the exams were never forwarded for grading.Suders
then resigned from the force and sued the PSP,alleging,inter alia ,
that she had been subjected to sexual harassment and constructively
discharged,in violation of Title VII of the Civil Rights Act of 1964.

The District Court granted the PSP ' s motion for summary judg-
ment.Although recognizing that Suders ' testimony would permit a
fact trier to conclude that her supervisors had created a hostile work
environment,the court nevertheless held that the PSP was not vi-
cariously liable for the supervisors 'conduct.In support of its deci-
sion,the District Court referred to Faragher v.Boca Raton,524 U.S.
775,808.In that case,and in Burlington Industries,Inc.v.Ellerth ,
524 U.S.742,decided the same day,this Court held that an em-
ployer is strictly liable for supervisor harassment that "culminates in
a tangible employment action,such as discharge,demotion,or unde-
sirable reassignment." 524 U..S.,at 765.But when no such tangible action is taken,both decisions also hold,the employer may raise an
affirmative defense to liability.To prevail on the basis of the defense,
the employer must prove that "(a)[it ] exercised reasonable care to
prevent and correct promptly any sexually harassing behavior," and
that (b)the employee "unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to
avoid harm otherwise."Ibid.Suders 'hostile work environment
claim was untenable as a matter of law,the District Court stated,be-
cause she unreasonably failed to avail herself of the PSP 's internal
antiharassment procedures.The court did not address Suders 'con-
structive discharge claim.

The Third Circuit reversed and remanded the case for trial.The
appeals court disagreed with the District Court in two key respects:
First,even if the PSP could assert the Ellerth/Faragher affirmative
defense,genuine issues of material fact existed about the effective-
ness of the PSP 's program to address sexual harassment claims;sec-
ond,Suders had stated a claim of constructive discharge due to hos-
tile work environment.The appeals court ruled that a constructive
discharge,if proved,constitutes a tangible employment action that
renders an employer strictly liable and precludes recourse to the El-
lerth/Faragher affirmative defense.

To establish “constructive discharge,” a plaintiff alleging sexual
harassment must show that the abusive working environment be-
came so intolerable that her resignation qualified as a fitting re-
sponse.An employer may assert the Ellerth/Faragher affirmative
defense to such a claim unless the plaintiff quit in reasonable re-
sponse to an adverse action officially changing her employment
status or situation,e.g.,a humiliating demotion,extreme cut in pay,
or transfer to a position in which she would face unbearable working
conditions.Pp.9 –21.

(a)Under the constructive discharge doctrine,an employee ’ s rea-
sonable decision to resign because of unendurable working conditions
is assimilated to a formal discharge for remedial purposes.The in-
quiry is objective:Did working conditions become so intolerable that
a reasonable person in the employee ’s position would have felt com-
pelled to resign?This doctrine was developed by the National Labor
Relations Board (NLRB)in the 1930 ’s,and was solidly established in
the lower federal courts by 1964,when Title VII was enacted.The
Court agrees that Title VII encompasses employer liability for a con-
structive discharge.Pp.9 –11.

(b)This case concerns employer liability for one subset of construc-
tive discharge claims:those resulting from sexual harassment,or
“hostile work environment,” attributable to a supervisor..The Court ’s
starting point is the Ellerth/Faragher framework.Those decisions delineate two categories of sexual harassment claims:(1)those al-
leging a “tangible employment action,” for which employers may be
held strictly liable;and (2)those asserting no tangible employment
action,in which case employers may assert the affirmative defense.
Ellerth,524 U.S.,at 765.The key issues here are:Into which El-
lerth/Faragher category hostile-environment constructive discharge
claims fall,and what proof burdens the parties bear in such cases.In
Ellerth and Faragher,the Court invoked the principle drawn from
agency law that an employer is liable for the acts of its agent when
the agent is “aided in accomplishing the tort by the existence of the
agency relation.” Id.,at 758.When a supervisor engaged in harass-
ing conduct takes a tangible employment action against a subordi-
nate,the Court reasoned,it is beyond question that the supervisor is
aided by the agency relation.A tangible employment action,the
Court stated,is an “official act of the enterprise ” and “fall [s ] within
the special province of the supervisor.” Id..,at 762.In contrast,when
supervisor harassment does not culminate in a tangible employment
action,Ellerth and Faragher explained,it is less obvious that the
agency relation is the driving force.The Court also recognized that a
liability limitation linked to an employer ’s effort to install effective
grievance procedures and an employee ’s effort to report harassing
behavior would advance Title VII ’ s conciliation and deterrence pur-
poses.Id.,at 764.Accordingly,the Court held that when no tangible
employment action is taken,an employer may defeat vicarious liabil-
ity for supervisor harassment by establishing the two-part affirma-
tive defense.That defense,the Court observed,accommodates the
“avoidable consequences ” doctrine Title VII “borrows from tort law,”
ibid.,by requiring plaintiffs reasonably to stave off avoidable harm.
Ellerth and Faragher clarify,however,that the defending employer
bears the burden to prove that the plaintiff-employee unreasonably
failed to avoid or reduce harm.Faragher,at 807.Pp.11 –15.

(1)The constructive discharge at issue stems from,and can be
regarded as an aggravated case of,sexual harassment or hostile work
environment.For an atmosphere of harassment or hostility to be ac-
tionable,the offending behavior must be sufficiently severe or perva-
sive to alter the victim ’s employment conditions and create an abu-
sive working environment.Meritor Savings Bank,FSB v.Vinson,477
U.S.57,67.A hostile-environment constructive discharge claim en-
tails something more:working conditions so intolerable that a rea-
sonable person would have felt compelled to resign.Suders ’claim is
of the same genre as the claims analyzed in Ellerth and Faragher .
Essentially,Suders presents a “worse case ” harassment scenario,
harassment ratcheted up to the breaking point.Like the harassment
considered in Ellerth and Faragher,harassment so intolerable as to cause a resignation may be effected through co-worker conduct,unoffi-
cial supervisory conduct,or official company acts.Unlike an actual
termination,which is always effected through an official company act,a
constructive discharge may or may not involve official action.When it
does not,the extent to which the agency relationship aided the supervi-
sor ’s misconduct is less certain,and that uncertainty justifies affording
the employer the chance to establish,through the Ellerth/Faragher af-
firmative defense,that it should not be held vicariously liable.The
Third Circuit erred in drawing the line differently.Pp.15 –19.

(2)The Third Circuit qualified its holding that a constructive
discharge itself constitutes a tangible employment action under El-
lerth and Faragher:The affirmative defense delineated in those
cases,the court noted,might be imported into the anterior issue
whether the employee ’s decision to resign was reasonable under the
circumstances.However,the appeals court left open when and how
the Ellerth/Faragher considerations would be brought home to the
fact trier.The Court of Appeals did not address specifically the allo-
cation of pleading and persuasion burdens,but simply relied 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.”
325 F.3d,at 463.There is no cause for leaving the district courts
thus unguided.Following Ellerth and Faragher ,the plaintiff who
alleges no tangible employment action has the duty to mitigate harm,
but the defendant bears the burden to allege and prove that the
plaintiff failed in that regard.Pp.19 –21.

(c)Although the Third Circuit correctly ruled that the case,in its
current posture,presents genuine issues of material fact concerning
Suders ’hostile work environment and constructive discharge claims,
that court erred in declaring the affirmative defense described in El-
lerth and Faragher never available in constructive discharge cases.
P.21.

325 F.3d 432,vacated and remanded.