Robinson v. City of Pittsburgh , 120 F.3d 1286 ( 1997 )


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  •                                                                                                                            Opinions of the United
    1997 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    7-14-1997
    Robinson v. City of Pittsburgh
    Precedential or Non-Precedential:
    Docket 95-3594
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    Recommended Citation
    "Robinson v. City of Pittsburgh" (1997). 1997 Decisions. Paper 157.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1997/157
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    Filed July 14, 1997
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 95-3594
    CARMEN L. ROBINSON; NATHANIEL HAWTHORNE, JR.,
    Wife and Husband,
    Appellants
    v.
    CITY OF PITTSBURGH, EARL BUFORD, CRAIG B.
    EDWARDS; JAMES N. DICKERSON
    ON APPEAL FROM THE
    UNITED STATES DISTRICT COURT
    FOR THE WESTERN DISTRICT OF PENNSYLVANIA
    (D.C. Civil No. 94-1378)
    Argued: January 6, 1997
    Before: GREENBERG, COWEN, and ALITO, Circuit Judges
    (Opinion Filed: July 14, 1997)
    SAMUEL J. CORDES (Argued)
    OGG, JONES, CORDES
    & IGNELZI, L.L.P.
    245 Fort Pitt Boulevard
    Pittsburgh, PA 15222
    Attorney for Appellants
    JACQUELINE R. MORROW
    CITY SOLICITOR
    JOHN G. SHORALL (Argued)
    Assistant City Solicitor
    SUSAN E. MALIE
    Assistant City Solicitor
    City of Pittsburgh
    Department of Law
    313 City-County Building
    Pittsburgh, PA 15219
    Attorneys for Appellee
    OPINION OF THE COURT
    ALITO, Circuit Judge:
    Appellants Carmen Robinson and Nathaniel Hawthorne,
    Jr. worked as police officers for appellee City of Pittsburgh
    ("the City"). Robinson alleges that she was sexually
    harassed by appellee James Dickerson (her supervisor) and
    that appellees Craig Edwards (an assistant police chief) and
    Earl Buford (the chief of police) knew of the harassment but
    failed to take action to stop it. Robinson asserted a variety
    of claims under both federal and state law against
    Dickerson, Edwards, Buford, and the City. At the close of
    plaintiffs' case, the district court granted defendants'
    motion for judgment as a matter of law on several of
    Robinson's claims. The jury returned verdicts for
    defendants on the claims that remained. In this appeal,
    plaintiffs challenge the grant of judgment as a matter of
    law, a jury instruction, and certain evidentiary rulings. We
    affirm in part, reverse in part, and remand.
    I.
    Robinson began working as a Pittsburgh police officer in
    1990. Hawthorne, her husband, also worked as a police
    officer for the City. In January 1992, Robinson was
    assigned to a drug suppression unit commanded by then-
    2
    Lieutenant Dickerson. Hawthorne worked in the same unit
    until June 1992, and Robinson contends that after he left
    to begin a new assignment, Dickerson began sexually
    harassing her. According to Robinson, the harassment
    included unhooking her bra, snapping her bra strap,
    touching her hair and ears, telling her "you stink pretty,"
    making comments about the size of her breasts, blowing
    her a kiss, asking her out for a drink, touching her leg
    under a table, putting his hands around her waist,
    dropping his keys down the back of her shirt and
    attempting to retrieve them, and describing the position in
    which he and Robinson would have sex if they were to do
    so. Robinson testified that she never acceded to any of
    Dickerson's sexual advances or reciprocated any of his
    sexual remarks and that she made it clear to him that his
    conduct was unwelcome.
    In the fall of 1992, Robinson approached Assistant Chief
    Edwards to inquire about a transfer to the detective bureau
    (which would have been a promotion). Edwards had no
    direct supervisory authority over Robinson, but was one of
    two second-in-command officers who reported directly to
    Chief Buford. (App. 89-90; 585-86) Robinson testified that
    she told Edwards that she thought Dickerson "was hitting
    on [her]" and "coming on to [her]." (App. 146-47) She said
    that Edwards advised her to "wait it out" because he
    thought that Chief Buford might be leaving soon for
    another job. Edwards reportedly said that Buford might
    take Dickerson with him and that even if Dickerson
    remained, Buford's departure would allow Edwards to
    obtain power over Dickerson. (App. 147) Until then,
    however, Edwards allegedly told Robinson he could not do
    anything about Dickerson because Buford protected him.
    (App. 147-48) In addition, according to Robinson, Edwards
    told her that Buford would not do anything to help her
    because Dickerson "had done this before" and Buford had
    not done anything following that incident. (App. 148)
    Robinson testified that she believed "waiting it out" was a
    "viable solution" and that she did not tell her husband
    about the harassment or do anything else about it at the
    time. (App. 149)1
    _________________________________________________________________
    1. In addition to this request, Robinson sought a transfer to the detective
    bureau on several other occasions, but she never succeeded in obtaining
    such a transfer.
    3
    In May 1993, Robinson wrote a letter to Buford in which
    she asked to meet with him. According to Robinson, her
    original draft of the letter, prepared in March or April 1993,
    stated that Dickerson was "coming on to [her]" and that she
    thought that this was "the reason for [her] now bad
    reputation." (App. 168) Robinson recounted that she gave
    the letter to Edwards to look over and that Edwards told
    her that she could not send the letter through the chain of
    command because it was too "specific in detail." According
    to Robinson, Edwards recommended that she "just be
    specific about requesting a meeting." (App. 166-67) The
    original draft was never introduced in evidence. The letter
    that was actually sent to Buford requested a meeting in
    order to discuss "career goals" and "past conflicts" and to
    "seek guidance with future endeavors." The letter made no
    mention of sexual harassment. Upon receipt of the letter,
    Buford returned it to Robinson with a notation that it
    needed to be transmitted through the proper chain of
    command rather than sent directly to him.
    In January 1994, Robinson was detailed to the criminal
    intelligence unit, where her direct supervisor was Sergeant
    William Bochter and her second-line supervisor was Chief
    Buford. In this assignment, neither Dickerson nor Edwards
    possessed any supervisory authority over Robinson. In May
    1994, Robinson met with Edwards, told him she was "fed
    up" with the harassment, and stated her intention to file a
    complaint. She testified that Edwards recommended that
    she file a complaint with the Equal Employment
    Opportunity Commission ("EEOC").
    A few weeks later, Robinson filed a complaint with
    Bochter, who forwarded it to Buford on May 31, 1994. On
    June 1, 1994, Robinson filed a complaint with the EEOC
    alleging that Dickerson had sexually harassed her, and on
    July 6, 1994, she filed a similar complaint with the Bureau
    of Police Office of Professional Standards ("OPS"). OPS's
    investigation, which was completed in September 1994,
    concluded that probable cause existed to substantiate
    Robinson's claim.2 In October 1994, Robinson stopped
    _________________________________________________________________
    2. The district court did not allow the OPS report itself to be introduced
    in evidence, but it permitted the investigating officer, Carla Gedman, to
    testify as to her conclusions on the ground that they were admissions by
    a party-opponent and thus not hearsay.
    4
    reporting for work, and she has not returned to her job
    since that time. She was nonetheless promoted to sergeant
    in February 1995.
    II.
    In August 1994, Robinson and Hawthorne filed suit in
    district court against the City, Buford, Edwards, and
    Dickerson. Under Title VII of the Civil Rights Act of 1964,
    42 U.S.C. § 2000e-2(a), Robinson asserted claims against
    the City for hostile work environment and quid pro quo
    sexual harassment and for retaliation, as well as a claim for
    hostile work environment sexual harassment against
    Dickerson. Under 
    42 U.S.C. § 1983
    , she asserted claims,
    based on alleged violations of the Equal Protection Clause,
    against all four defendants. She claimed that all four were
    responsible for unconstitutional sex-based discrimination
    and that all but Dickerson were liable for unlawful
    retaliation. In addition, Robinson asserted claims under
    Pennsylvania law for assault, battery, and intentional
    infliction of emotional distress against Dickerson. Robinson
    sought punitive damages on all claims. Hawthorne sued
    Dickerson under Pennsylvania law for loss of consortium.
    Dickerson counter-claimed against Robinson for
    defamation.
    At the close of plaintiffs' case, defendants moved for
    judgment as a matter of law pursuant to Fed. R. Civ. P.
    50(a). The district court granted defendants' motion as to
    the Title VII hostile work environment claim against
    Dickerson because individuals cannot be liable under that
    statute. See Sheridan v. E.I. DuPont de Nemours and Co.,
    
    100 F.3d 1061
    , 1077-78 (3d Cir. 1996) (en banc). The court
    granted the motion as to all of Robinson's § 1983 claims
    against the City on the ground that there was insufficient
    evidence of an unconstitutional policy or custom.
    Furthermore, with respect to the Title VII retaliation claim
    against the City (and in the alternative with respect to the
    § 1983 retaliation claim against the City, Buford, and
    Edwards), the court held that Robinson had not shown a
    causal link between her protected activity and any adverse
    employment action. The court granted the motion with
    respect to Robinson's Title VII quid pro quo claim against
    5
    the City because the court found insufficient evidence that
    a job benefit or detriment was conditioned upon Robinson's
    response to Dickerson's advances or that her response to
    his advances in fact affected a tangible aspect of her
    employment. Moreover, the court granted defendants'
    motion as to the § 1983 claims against Buford and Edwards
    on the ground that there was insufficient evidence that
    either was personally involved in any deprivation of
    Robinson's rights (as well as, with respect to the retaliation
    theory, on the alternative ground described above). Finally,
    the court granted the motion as to the intentional infliction
    claim against Dickerson and struck Robinson's demand for
    punitive damages on all claims because there was
    insufficient evidence of outrageous conduct.
    The claims that went to the jury were thus as follows: (1)
    the Title VII hostile work environment claim against the
    City; (2) the § 1983 sex discrimination claim against
    Dickerson; (3) the assault and battery claims against
    Dickerson; (4) Hawthorne's loss of consortium claim against
    Dickerson; and (5) Dickerson's defamation counter-claim.
    The jury returned verdicts for the defense on all of
    plaintiffs' claims, as well as a verdict for Robinson on the
    counter-claim.
    Robinson appeals from the grant of judgment as a matter
    of law on all claims except the Title VII and intentional
    infliction claims against Dickerson.3 In addition, she
    contests certain evidentiary rulings and a jury instruction
    that allegedly affected the jury's rejection of the claims that
    it was permitted to consider. Nothing is at issue in this
    appeal with respect to the defamation counter-claim, the
    assault and battery claims, or the loss of consortium claim.
    We exercise plenary review over the district court's grant
    of judgment as a matter of law. Delli Santi v. CNA Ins. Co.,
    
    88 F.3d 192
    , 200 (3d Cir. 1996). "Our role is to determine
    _________________________________________________________________
    3. Robinson's statement of issues includes the question whether the
    court properly granted judgment as a matter of law on what she
    describes as her "claim" for punitive damages, Appellants' Br. at 2, but
    her brief does not mention this issue. She has therefore waived it.
    Pennsylvania v. Dept. of Health and Human Services, 
    101 F.3d 939
    , 945
    (3d Cir. 1996).
    6
    whether the evidence and justifiable inferences most
    favorable to the [non-moving] party [would have] afford[ed]
    any rational basis" for a verdict in favor of the non-moving
    party. 
    Id.
     (quotation omitted). We exercise plenary review
    over the jury instructions given by the district court in
    order to determine whether, read as a whole, the
    instructions stated the correct legal standard. Miller v.
    CIGNA Corp., 
    47 F.3d 586
    , 591 (3d Cir. 1995) (en banc).
    Finally, we review the district court's decisions to admit or
    exclude evidence for abuse of discretion, Glass v.
    Philadelphia Elec. Co., 
    34 F.3d 188
    , 191 (3d Cir. 1994),
    although our review is plenary as to the interpretation or
    application of a legal standard underlying such a decision.
    West v. Philadelphia Elec. Co., 
    45 F.3d 744
    , 752 (3d Cir.
    1995). We will not reverse on the basis of an erroneous
    decision to admit or exclude evidence unless the error
    affected a "substantial right" of the aggrieved party. 
    Id.
    III.
    Section 1983 Equal Protection Claim Against Buford,
    Edwards, and the City
    To prevail on her § 1983 equal protection claim, Robinson
    was required to prove that she was subjected to "purposeful
    discrimination" because of her sex. Keenan v. City of
    Philadelphia, 
    983 F.2d 459
    , 465 (3d Cir. 1993). Moreover,
    to hold Buford or Edwards liable under § 1983 for such an
    equal protection violation, Robinson was required to prove
    that they personally "participated in violating [her] rights,
    . . . that [they] directed others to violate them, or that [they]
    . . . had knowledge of and acquiesced in [their]
    subordinates' violations." Baker v. Monroe Twp., 
    50 F.3d 1186
    , 1190-91 (3d Cir. 1995). See also Andrews v. City of
    Philadelphia, 
    895 F.2d 1469
    , 1478 (3d Cir. 1990). Robinson
    does not contend that either Buford or Edwards personally
    engaged in any discriminatory conduct against her or that
    they directed anyone else to do so. Rather, her argument is
    that Buford and Edwards were aware of and acquiesced in
    Dickerson's sexual harassment. We must thus determine,
    taking Robinson's evidence as true and giving her the
    benefit of all reasonable inferences, what Edwards and
    7
    Buford knew about the harassment, when they learned
    about it, and what, if anything, they did in response.
    A. Robinson does not seek to hold Edwards liable for
    anything that he did or did not do following her May 1994
    complaint. Rather, she contends that she told Edwards in
    1992 that Dickerson was "hitting on [her]" and that
    Edwards "acquiesced" in Dickerson's conduct because he
    did not take any action to stop Dickerson but instead told
    Robinson to "wait it out" because Buford and/or Dickerson
    might soon be changing jobs.
    Edwards responds that the jury's verdict for the City on
    Robinson's Title VII hostile work environment claim
    conclusively establishes that he cannot be liable under
    § 1983 for acquiescing in her subjection to a hostile
    environment. If there was no hostile environment in the
    first place, Edwards's argument goes, then he logically
    cannot be liable for knowingly acquiescing in the existence
    of one. We reject this argument because, among other
    things, it ignores the fact that the jury's verdict does not
    necessarily mean that it found that Robinson was not
    subjected to a hostile work environment. Instead, the jury
    might have rejected her Title VII hostile work environment
    claim on the ground that the City had an effective policy
    against sexual harassment. See, e.g., Bouton v. BMW of N.
    Am., Inc., 
    29 F.3d 103
    , 110 (3d Cir. 1994).
    We agree with Edwards, however, that there was
    insufficient evidence to show that he knew of and
    acquiesced in Dickerson's alleged sexual harassment. It is
    true that the jury could have found that Edwards knew in
    1992 that Dickerson was "hitting on" Robinson and that
    Edwards did not take any action to stop Dickerson's
    conduct. But it is undisputed that, while Edwards had a
    higher rank than Dickerson, he possessed no actual
    supervisory authority over him. (App. 1031-32) Regardless
    of whether the evidence presented by Robinson would be
    adequate if Edwards had actual supervisory authority over
    Dickerson, we do not believe that Edwards can be held
    liable under § 1983 for failing to take action to correct the
    behavior of an individual over whom he had no actual
    control.
    8
    "A defendant in a [§ 1983] action must have personal
    involvement in the alleged wrongs." Rode v. Dellarciprete,
    
    845 F.2d 1195
    , 1207 (3d Cir. 1988) (emphasis added). See
    also, e.g., Andrews, 
    895 F.2d at 1478
     ("there must be some
    affirmative conduct by the supervisor that played a role in
    the discrimination") (citing Rizzo v. Goode, 
    423 U.S. 362
    ,
    377 (1976)). Our cases have held that "actual knowledge
    and acquiescence" suffices for supervisory liability because
    it can be equated with "personal direction" and "direct
    discrimination by the supervisor." 
    Id.
     (quoting Rode, 
    845 F.2d at 1207
    ). Where a supervisor with authority over a
    subordinate knows that the subordinate is violating
    someone's rights but fails to act to stop the subordinate
    from doing so, the factfinder may usually infer that the
    supervisor "acquiesced" in (i.e., tacitly assented to or
    accepted) the subordinate's conduct.4 But where actual
    supervisory authority is lacking, mere inaction, in most
    circumstances, does not reasonably give rise to a similar
    inference. As a general matter, a person who fails to act to
    correct the conduct of someone over whom he or she has
    no supervisory authority cannot fairly be said to have
    "acquiesced" in the latter's conduct.
    General tort principles provide a useful analogy. Unless a
    "master"-"servant" relationship exists, the circumstances in
    which one person may be held liable for a tort committed
    by another are quite limited, see Restatement (Second) of
    Torts §§ 876-878 (1977), and none appears to be applicable
    here. A claim against a "master" based on a tort committed
    by a "servant" bears a resemblance to a § 1983 claim
    against a government supervisor based on a constitutional
    tort committed by a subordinate,5 but a person cannot be
    a "master" unless he or she has "the right to control the
    physical conduct" of the servant. Restatement (Second) of
    Agency § 2(1) (1957). By analogy, we hold that, except
    perhaps in unusual circumstances, a government official or
    employee who lacks supervisory authority over the person
    who commits a constitutional tort cannot be held, based on
    _________________________________________________________________
    4. See Webster's Third New International Dictionary 18 (1971); Random
    House Dictionary of the English Language Unabridged Ed. 13 (1967).
    5. We do not suggest, however, that all rules applicable to the former
    type of claim may be applied by analogy to the latter.
    9
    mere inaction,6 to have "acquiesced" in the unconstitutional
    conduct.
    Here, it is clear that Edwards did not control or have the
    right to control Dickerson's physical conduct in the
    performance of his job, and Edwards is thus not liable for
    Dickerson's conduct.7 Accordingly, we affirm the district
    _________________________________________________________________
    6. Of course, if the government official or employee had sufficient
    personal involvement in the constitutional tort, he or she may be held
    liable. In this context, the rules set out in §§ 876 and 877(a) of the
    Restatement (Second) of Torts provide useful guidance. Section 876
    states:
    For harm resulting to a third person from the tortious conduct of
    another, one is subject to liability if he
    (a) does a tortious act in concert with the other or pursuant to a
    common design with him, or
    (b) knows that the other's conduct constitutes a b reach of duty
    and gives substantial assistance or encouragement to the other so
    to conduct himself, or
    (c) gives substantial assistance to the other in a ccomplishing a
    tortious result and his own conduct, separately considered,
    constitutes a breach of duty to the third person.
    Section 877(a) provides:
    For harm resulting to a third person from the tortious conduct of
    another, one is subject to liability if he
    (a) orders or induces the conduct, if he knows or should know of
    circumstances that would make the conduct tortious if it were his
    own . . . .
    7. All of our prior cases discussing the issue of supervisory liability for
    "acquiescence" involved defendants who had actual authority to control
    the conduct of the person alleged to have violated the plaintiff's rights.
    Our decision here is thus fully consistent with our holdings in those
    cases.
    For example, in Baker, 
    50 F.3d at 1193-94
    , we held that the officer
    who was in charge of a drug raid could be liable under § 1983 for certain
    allegedly illegal actions taken by the officers under his command where
    there was "sufficient evidence to permit an inference that [the
    commanding officer] knew of and acquiesced in the treatment the
    [plaintiffs] were receiving at the hands of the other officers acting under
    10
    court's grant of judgment as a matter of law to Edwards on
    Robinson's § 1983 equal protection claim.
    B. Robinson argues that Buford is liable under§ 1983
    for Dickerson's conduct because Buford "took absolutely no
    action to remedy Robinson's situation, and the evidence
    suggests that he thought Dickerson's conduct a joke."
    Appellants' Br. at 22. We disagree, because we are unable
    to find any evidence that Buford had any knowledge of any
    alleged harassment before May 1994. (As with Edwards,
    Robinson does not argue that Buford is liable based on
    anything he did or failed to do following her May 1994
    complaint.)
    Robinson testified that Edwards told her in 1992 that it
    would not serve any purpose for him to forward her
    complaint to Buford because Buford would not take it
    seriously. It seems most doubtful that Edwards's statement
    would have been admissible at trial against Buford, but in
    _________________________________________________________________
    his supervision." 
    50 F.3d at 1193
    . The commanding officer indisputedly
    had the authority to control the conduct of the officers under his
    command.
    In Keenan, 
    983 F.2d at 465-68
    , the plaintiffs alleged that they were
    transferred in retaliation for protected activity, and the jury agreed. We
    held that four supervisors could be liable under § 1983 where they knew
    of the plaintiffs' protected activity and approved the transfers anyway. Id.
    at 468. We concluded that "the evidence [was] sufficient to establish that
    the plaintiffs were impermissibly disciplined by [the four supervisors] for
    conduct that constituted protected activity." Id. Keenan is
    distinguishable because the four supervisors approved the transfers and
    possessed formal authority over their respective subordinates who
    recommended the transfers.
    In Andrews, 
    895 F.2d at 1478-79
    , the supervisors not only had direct
    authority over the primary harassers but also were personally involved
    in the unconstitutional conduct. We upheld a verdict against one
    supervisor who "personally participated in" and "condoned" the
    harassment perpetrated by other officers under his supervision. As to
    another supervisor, "the man who was ultimately responsible for the
    conduct of the Division," we held that the evidence supported the jury's
    finding that he was aware of the harassment and not only did nothing
    to stop it, but told the plaintiff that "you have to expect this working
    with the guys." 
    Id. at 1479
    .
    11
    any event this statement in no way tends to show that
    Buford in fact was aware in 1992 that Dickerson was
    sexually harassing Robinson. The uncontradicted evidence
    shows that Buford first learned of Robinson's complaint
    when Bochter told him about it on May 31, 1994. We
    therefore affirm the district court's grant of judgment as a
    matter of law to Buford on Robinson's § 1983 equal
    protection claim.
    C. Our conclusion that Buford is not liable under
    § 1983 for Dickerson's alleged sexual harassment requires
    us to reject as well Robinson's submission that the City is
    liable under § 1983 for Dickerson's alleged sexual
    harassment. The City, as a municipality, is not liable
    through respondeat superior for the constitutional torts of
    its employees. Monell v. Dept. of Social Services, 
    436 U.S. 658
     (1978). Municipal liability attaches only "when
    execution of a government's policy or custom, whether
    made by its lawmakers or by those whose edicts or acts
    may fairly be said to represent official policy, inflicts the
    injury" complained of. 
    Id. at 694
    . As we explained in
    Andrews:
    A government policy or custom can be established in
    one of two ways. Policy is made when a decisionmaker
    possess[ing] final authority to establish municipal
    policy with respect to the action issues an official
    proclamation, policy, or edict. A course of conduct is
    considered to be a "custom" when, though not
    authorized by law, such practices of state officials [are]
    so permanent and well-settled as to virtually constitute
    law.
    
    895 F.2d at 1480
     (quotations omitted) (emendations in
    original).
    Robinson does not argue that the City is liable because
    it maintained a "custom" of permitting sexual harassment.
    Rather, she asserts that the City is liable through Buford,
    who is concededly a policymaker whose conduct is
    attributable to the City. In accordance with our holding
    that Buford is not liable under § 1983 for Dickerson's
    alleged sexual harassment, we conclude that the City
    likewise is not liable under § 1983. We therefore affirm the
    12
    district court's grant of judgment as a matter of law to the
    City on Robinson's § 1983 equal protection claim.
    IV.
    Title VII Quid Pro Quo Sexual Harassment Claim
    Against the City
    In addition to claiming that Dickerson's sexual
    harassment created a hostile work environment, Robinson
    alleged that Dickerson engaged in quid pro quo sexual
    harassment, for which the City was liable under Title VII.
    The district court granted judgment as a matter of law for
    the City on this claim, but we hold that Robinson presented
    sufficient evidence to go to the jury on this claim.8
    A. This court has not yet had occasion to consider the
    elements of a quid pro quo claim, but we agree with the
    formulation set out in 
    29 C.F.R. § 1604.11
    (a)(1) and (2),
    which provides:
    Unwelcome sexual advances, requests for sexual
    favors, and other verbal or physical conduct of a sexual
    nature constitute sexual harassment when (1)
    submission to such conduct is made either explicitly or
    implicitly a term or condition of an individual's
    employment [or] (2) submission to or rejection of such
    conduct by an individual is used as the basis for
    employment decisions affecting such individuals. . ..
    See also, e.g., Heyne v. Caruso , 
    69 F.3d 1475
    , 1478 (9th
    Cir. 1995); Cram v. Lanson & Sessions, 
    49 F.3d 466
    , 473
    (8th Cir. 1995); Karibian v. Columbia University , 
    14 F.3d 773
    , 777 (2d Cir. 1994); Martin v. Nannie and the
    _________________________________________________________________
    8. We reject at the outset defendants' contention that there is no
    evidence that Dickerson ever made a sexual advance to Robinson. The
    record is replete with evidence of implicit sexual advances, so we take
    defendants to mean that only an explicit request for sex qualifies as a
    sexual advance. We disagree. We note simply that the evidence
    previously summarized concerning Dickerson's alleged statements and
    actions would have entitled the jury to find that Dickerson made sexual
    advances to Robinson.
    13
    Newborns, Inc., 
    3 F.3d 1410
    , 1416 (10th Cir. 1993); Lipsett
    v. University of Puerto Rico, 
    864 F.2d 881
    , 898 (1st Cir. 1988).9
    Under this test, the consequences attached to an
    employee's response to the sexual advances must be
    sufficiently severe as to alter the employee's "compensation,
    terms, conditions, or privileges of employment," 42 U.S.C.
    § 2000e-2(a)(1), or to "deprive or tend to deprive [him or
    her] of employment opportunities or otherwise adversely
    affect his [or her] status as an employee." 42 U.S.C.
    § 2000e-2(a)(2). This does not mean that the employee must
    be threatened with or must experience " `economic' or
    `tangible' discrimination." Meritor, 477 U.S. at 64. See also
    Harris v. Forklift Systems, Inc., 
    510 U.S. 17
    , 21 (1993). But
    by the same token, not every insult, slight, or
    unpleasantness gives rise to a valid Title VII claim. In
    Meritor, the Supreme Court noted that "not all workplace
    conduct that may be described as `harassment' affects a
    `term, condition, or privilege of employment.' " 477 U.S. at
    67. The Court also suggested that the " `mere utterance of
    an ethnic or racial epithet which engenders offensive
    feelings in an employee' would not affect the conditions of
    employment to [a] sufficiently significant degree to violate
    Title VII." Id. (quoting Rogers v. EEOC, 
    454 F.2d 234
    , 238
    (5th Cir. 1971)). Thus, whether in a hostile work
    _________________________________________________________________
    9. Courts have unanimously held that an employer is strictly liable for
    quid pro quo harassment by a supervisor having actual or apparent
    authority to carry out the threat or promise that is made to the victim.
    See Karibian, 
    14 F.3d at 777
    . See also Meritor Sav. Bank, FSB v. Vinson,
    
    477 U.S. 57
    , 76 (1986) (Marshall, J., concurring in the judgment) ("every
    Court of Appeals that has considered the issue has held that sexual
    harassment by supervisory personnel is automatically imputed to the
    employer when the harassment results in tangible detriment to the
    subordinate employee"). This rule differs from that which applies in a
    hostile work environment case. See Bouton v. BMW of N. Am., Inc., 
    29 F.3d 103
    , 106-07 (3d Cir. 1994). This distinction has been criticized,
    see, e.g., J. Hoult Verkerke, Notice Liability in Employment Discrimination
    Law, 
    81 Va. L. Rev. 273
    , 277 (1995), but since the parties here have not
    addressed the issue, we assume that the City would be liable for any
    quid pro quo sexual harassment committed by Dickerson. Cf. Bouton, 
    29 F.3d at 106-07
     (stating, in a case involving only a hostile environment
    claim, that "[w]ithout the agency relationship, quid pro quo harassment
    would be impossible, so the employer is responsible").
    14
    environment case or a quid pro quo case, objectionable
    conduct attributable to an employer is not always sufficient
    to alter an employee's terms, conditions, or privileges of
    employment and is thus not always sufficient to violate
    Title VII.
    Subsections (1) and (2) of 
    29 C.F.R. § 1604.11
    (a) differ in
    that subsection (1) addresses cases in which an employee
    is told beforehand that his or her compensation or some
    other term, condition, or privilege of employment will be
    affected by his or her response to the unwelcome sexual
    advances, whereas subsection (2) addresses cases in which
    the employee's response to sexual advances is thereafter
    used as a basis for a decision concerning compensation,
    etc. Under subsection (1), a quid pro quo violation occurs
    at the time when an employee is told that his or her
    compensation, etc. is dependent upon submission to
    unwelcome sexual advances. At that point, the employee
    has been subjected to discrimination because of sex. (This
    is so, of course, because, if the employee had been a
    member of the opposite sex, his or her compensation, etc.
    presumably would not have been made dependent on
    submission.) Whether the employee thereafter submits to or
    rebuffs the advances, a violation has nevertheless occurred.
    Like the Second Circuit, we "do not read Title VII to punish
    the victims of sexual harassment who surrender to
    unwelcome sexual encounters. . . . The supervisor's
    conduct is equally unlawful under Title VII whether the
    employee submits or not." Karibian, 
    14 F.3d at 778
    .10
    Similarly, there is a violation under subsection (1) even if
    the employee rebuffs the advances and his or her
    compensation, terms, conditions, or privileges of
    employment are not in fact altered, i.e., even if the
    supervisor does not follow through on his or her threat. The
    threat is sufficient to constitute "discriminat[ion] . . . with
    _________________________________________________________________
    10. Whether the employee "submi[tted] to the supervisor's advances is
    certainly relevant" because it bears on "the issue whether the sexual
    advances were unwelcome, not whether unwelcome sexual advances
    were unlawful." Karibian, 
    14 F.3d at 779
    . In this case, it is undisputed
    that Robinson refused to submit to Dickerson's alleged advances, and it
    is clear that the jury would have been entitled tofind that the advances
    were unwelcome.
    15
    respect to . . . compensation, terms, conditions, or
    privileges of employment, because of . . . sex." 11 42 U.S.C.
    § 2000e-2(a)(1). But see Gary v. Long, 
    59 F.3d 1391
    , 1396
    (D.C. Cir. 1995).
    Under subsection (2), a plaintiff must make a showing
    that differs significantly from that required under
    subsection (1). Under subsection (2), the plaintiff must
    show that his or her response to unwelcome advances was
    subsequently used as a basis for a decision about
    compensation, etc. Thus, the plaintiff need not show that
    submission was linked to compensation, etc. at or before
    the time when the advances occurred. But the employee
    must show that his or her response was in fact used
    thereafter as a basis for a decision affecting his or her
    compensation, etc.
    B. Robinson contends that Dickerson linked her
    response to his advances to the job detriments of "a bad
    reputation at work" and "unjust reprimands." Appellants'
    Br. at 28-29. Robinson explains that "[m]any times after
    Robinson would reject him, Dickerson unjustifiably
    reprimanded her in a very harsh manner and in front of
    other officers; he continuously bothered her at work, even
    when she was not under his direct command; he phoned
    her at home and work for reasons unrelated to police
    business; and he made negative comments to her regarding
    her work and her marriage." Appellants' Br. at 29 (citations
    omitted).
    We are not persuaded that these alleged actions, even
    when taken together, rose to the level of conduct affecting
    Robinson's "compensation, terms, conditions, or privileges"
    of employment. Formal reprimands that result in a notation
    in an employee's personnel file could be sufficiently
    concrete, but harsh words that lack real consequences are
    not. See Meritor, 
    477 U.S. at 67
    .
    We reach a different conclusion with respect to
    Robinson's allegation that Dickerson blocked her transfer to
    the detective bureau because she refused to accede to his
    _________________________________________________________________
    11. The fact that no adverse action was taken is of course relevant to the
    question whether a threat or promise was made.
    16
    advances. The record before us would certainly permit the
    conclusion that Robinson was denied a transfer to the
    detective bureau (which would have been a promotion)
    because she had performed unsatisfactorily in two
    undercover assignments, because she was unable to accept
    criticism or take direction, or for other valid work-related
    reasons. However, we believe that the record would also
    support a finding that Dickerson refused to recommend her
    transfer because she rebuffed his advances. It is
    undisputed that a supervisor's recommendation weighs
    very heavily in determining who is transferred, so the jury
    could conclude that Dickerson's refusal to recommend
    Robinson cost her the transfer. Accordingly, the evidence
    was sufficient to support a finding of quid pro quo
    harassment within the meaning of 
    29 C.F.R. § 1604.11
    (a)(2).12
    Robinson testified that Dickerson told her on several
    occasions that he would recommend her for transfer to the
    detective bureau (App. 111, 113-14, 121-22, 142, 160-61),
    but that after a party at which Dickerson touched her leg
    under the table and pulled her into a compromising
    position for a photograph, he responded to her renewed
    inquiry about the transfer by telling her that "he had talked
    to the Chief and he had talked to other detectives, and they
    had all said I had a bad attitude," implying that this was
    the reason she had not been transferred. (App. 143) She
    also testified that, when she spoke to Edwards shortly
    thereafter, he confirmed that Dickerson had "been saying
    bad things about [her] lately to Buford and [him]." (App.
    _________________________________________________________________
    12. Robinson has not called to our attention any admissible evidence
    that Dickerson explicitly threatened her before or at the time he made a
    sexual advance that her response would affect her "compensation, terms,
    conditions, or privileges" of employment. See 
    29 C.F.R. § 1604.11
    (a)(1).
    In light of our conclusion that the evidence is sufficient to show that
    Dickerson in fact did use Robinson's response to his advances as a basis
    for a decision affecting her compensation, etc. within the meaning of
    subsection (2), we need not consider whether the evidence would support
    a finding that Dickerson imposed such a condition "implicitly" before or
    at the time he made the alleged advances within the meaning of
    subsection (1). On remand, the district court should decide whether
    Robinson can proceed to trial based only on the theory of quid pro quo
    harassment set out in 
    29 C.F.R. § 1604.11
    (a)(2) or whether she can rely
    on 
    29 C.F.R. § 1604.11
    (a)(1) as well.
    17
    145) When she asked Edwards how she should deal with
    that and told him that "none of it [what Dickerson had been
    saying] was true," he replied, "I know. I know Jim is like
    that. . . . Jimmy thinks he's a lover." (App. 146) Moreover,
    when Robinson asked Edwards why he thought Dickerson
    was saying bad things about her, Edwards said that
    "Dickerson would like to have nothing better than a 23-
    year-old girl like you." (App. 146) Robinson testified that,
    after Dickerson told her again in April 1993 that she would
    be transferred, Edwards "told [her] that he [didn't] know
    why Commander Dickerson said he was going to
    recommend [her], because he [Dickerson] made sure that
    [she] wasn't on that [March 1993 transfer] list." (App. 162)
    We hold that this evidence is sufficient to entitle a
    reasonable factfinder to conclude that Robinson was denied
    a transfer to the detective bureau because she refused
    Dickerson's advances. We believe that, in contrast to minor
    slights like "negative comments," receiving or being denied
    a desired promotion is sufficiently serious and tangible to
    constitute a change in the employee's "terms, conditions, or
    privileges" of employment.13 If the jury finds that Robinson
    was subjected to unwelcome sexual advances and that her
    response to those advances was the basis for Dickerson's
    refusal to recommend her for such a transfer, Robinson will
    have proved that the City, through Dickerson,
    discriminated against her because of her sex with respect
    to the "compensation, terms, conditions, or privileges" of
    her employment. 42 U.S.C. § 2000e-2(a)(1). Accordingly, we
    reverse the district court's grant of judgment as a matter of
    law to the City on Robinson's claim under Title VII for quid
    pro quo sexual harassment.14
    _________________________________________________________________
    13. Here, although the transfer at issue would have been a promotion,
    Robinson has not directed us to any specific evidence that the transfer
    would have increased her compensation. Paragraph 43 of her complaint
    does allege that a "transfer to the position of detective from the position
    of patrolman . . . is a promotion and carries with it an increase in
    annual compensation . . . ." (App. 27) Moreover, there appears to have
    been a stipulation between the parties with respect to the difference in
    pay between the detective level and the patrolman level. (App. 1310)
    14. The jury returned a verdict for Dickerson on Robinson's claim under
    § 1983 against Dickerson for discriminating against her because of her
    18
    V.
    Title VII and § 1983 Retaliation Claims Against the City,
    Buford, and Edwards
    Robinson contends that, after she filed her complaint
    with the EEOC, she suffered reprisals at work. Section
    704(a) of Title VII, 42 U.S.C. § 2000e-3(a), makes it "an
    unlawful employment practice" for "an employer" to
    "discriminate" against an employee "because he [the
    employee] has made a charge, testified, assisted, or
    participated in any manner in an investigation, proceeding,
    or hearing under [Title VII]." Robinson sued the City for
    retaliation under the above-quoted provision of Title VII.
    She also sued Buford and Edwards for retaliation under
    § 1983, apparently for violating her right, secured by the
    same provision of Title VII, to protest discrimination.
    In Nelson v. Upsala College, 
    51 F.3d 383
     (3d Cir. 1995),
    we set forth the elements of a retaliation claim:
    To establish discriminatory retaliation under Title VII,
    a plaintiff must demonstrate that: (1) she engaged in
    _________________________________________________________________
    sex, in violation of the Equal Protection Clause. Since this claim was
    allowed to go the jury after the court granted judgment as a matter of
    law on Robinson's quid pro quo and retaliation theories, it would appear
    that this claim was founded upon a hostile work environment theory. It
    is unclear from the record before us whether this claim was also founded
    upon a theory of quid pro quo harassment. If it was, our discussion in
    this section applies equally to it, and it should be tried on remand along
    with Robinson's Title VII quid pro quo claim against the City. (Unlike
    with respect to the § 1983 claims against Buford, Edwards, and the City,
    there is no legal issue regarding Dickerson's personal liability under
    § 1983.) We of course recognize that federal pleading rules are liberal,
    but it could be unfair for Robinson to assert a claim on remand that she
    did not make clear in the earlier proceedings in the district court.
    Compare Appellants' Br. at 2, 4, 28 (referring to a claim under § 1983 for
    quid pro quo harassment, though apparently only against the City) with
    Appellees' Br. at 22 (noting Robinson's references to a purported § 1983
    claim for quid pro quo harassment, but stating that the district court
    "analyzed Robinson's quid pro quo claim under a strict Title VII
    analysis"). We leave it to the district court to determine whether on
    remand Robinson should be permitted to pursue a claim against
    Dickerson under § 1983 on a quid pro quo theory.
    19
    activity protected by Title VII; (2) the employer took an
    adverse employment action against her; and (3) there
    was a causal connection between her participation in
    the protected activity and the adverse employment
    action.
    Id. at 386 (citations omitted). See also Woodson v. Scott
    Paper Co., 
    109 F.3d 913
    , 920 (3d Cir. 1997); Kachmar v.
    SunGard Data Systems, Inc., 
    109 F.3d 173
    , 177 (3d Cir.
    1997); Aman v. Cort Furniture Rental Corp., 
    85 F.3d 1074
    ,
    1085 (3d Cir. 1996); Jalil v. Avdel Corp., 
    873 F.2d 701
    , 708
    (3d Cir. 1989) (same); Delli Santi v. CNA Ins. Co., 
    88 F.3d 192
    , 198 (3d Cir. 1996) (same, under New Jersey law).
    It is undisputed that Robinson's EEOC complaint
    constitutes protected activity under Title VII. The district
    court granted judgment as a matter of law to defendants on
    Robinson's retaliation claims on the ground that she had
    not presented evidence that the alleged reprisals were the
    result of the protected activity. (App. 1029) On appeal,
    Robinson argues that the court erred in evaluating her
    evidence of retaliation. She submits that she was subjected
    to the following acts of reprisal due to the filing of her
    EEOC complaint:
    restricted job duties, reassignment and subsequent
    failure to transfer her out of an assignment in which
    she was under the direct command of the alleged
    harasser, and the issuance of several unsubstantiated
    oral reprimands against her. Additionally, she testified
    that after refuting one of his advances, Dickerson
    sometimes would not talk to her, or would make
    unnecessary derogatory comments to her. . . [Moreover,
    she testified that] "Chief Edwards told me that he
    didn't know why Commander Dickerson said he was
    going to recommend me, because he made sure that I
    wasn't on that [transfer] list."
    Appellants' Br. at 27 (citations omitted).
    A. In our view, much of the allegedly retaliatory conduct
    of which Robinson complains, even if her evidence is
    believed, does not give rise to a claim for retaliation. The
    alleged "unsubstantiated oral reprimands" and
    "unnecessary derogatory comments" suffered by Robinson
    20
    following her complaint do not rise to the level of what our
    cases have described as "adverse employment action."
    Title VII declares that "[i]t shall be an unlawful
    employment practice for an employer to discriminate"
    against an employee "because he has made a charge" of
    discrimination. 42 U.S.C. § 2000e-3(a). Title 42 U.S.C.
    § 2000e-2(a) makes it an "unlawful employment practice"
    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 . . . or to limit, segregate, or classify his
    employees . . . in any way which would deprive or tend
    to deprive any individual of employment opportunities
    or otherwise adversely affect his status as an employee,
    because of such individual's . . . sex . . . .
    Retaliatory conduct other than discharge or refusal to
    rehire is thus proscribed by Title VII only if it alters the
    employee's "compensation, terms, conditions, or privileges
    of employment," deprives him or her of "employment
    opportunities," or "adversely affect[s] his [or her] status as
    an employee." It follows that "not everything that makes an
    employee unhappy" qualifies as retaliation, for"[o]therwise,
    minor and even trivial employment actions that `an
    irritable, chip-on-the-shoulder employee did not like would
    form the basis of a discrimination suit.' " Smart v. Ball State
    University, 
    89 F.3d 437
    , 441 (7th Cir. 1996) (quoting
    Williams v. Bristol-Myers Squibb Co., 
    85 F.3d 270
    , 274 (7th
    Cir. 1996)).
    Courts have operationalized the principle that retaliatory
    conduct must be serious and tangible enough to alter an
    employee's compensation, terms, conditions, or privileges of
    employment into the doctrinal requirement that the alleged
    retaliation constitute "adverse employment action." See
    Williams, 
    85 F.3d at 273
     (interpreting parallel provisions of
    the Age Discrimination in Employment Act to require
    "materially adverse action"); McDonnell v. Cisneros, 
    84 F.3d 256
    , 258 (7th Cir. 1996) ("The language of `materially
    adverse employment action' that some courts employ in
    retaliation cases is a paraphrase of Title VII's basic
    21
    prohibition against employment discrimination, found in 42
    U.S.C. §§ 2000e-2(a)(1) and (2)."). Accordingly, just as we
    concluded that a quid pro quo plaintiff must show a "quo"
    that is serious enough to alter his or her "compensation,
    terms, conditions, or privileges" of employment, we hold
    that the "adverse employment action" element of a
    retaliation plaintiff's prima facie case incorporates the
    same requirement that the retaliatory conduct rise to the
    level of a violation of 42 U.S.C. § 2000e-2(a)(1) or (2).15
    _________________________________________________________________
    15. In Nelson v. Upsala College, 
    51 F.3d 383
     (3d Cir. 1995), the plaintiff,
    a former employee of Upsala, contended that Upsala retaliated against
    her by requiring that she obtain prior approval before going onto
    Upsala's campus. We observed that 42 U.S.C. § 2000e-3(a) "interdicts `an
    unlawful employment practice' rather than conduct in general which the
    former employee finds objectionable," id. at 388, and rejected the
    plaintiff's argument on the ground that the allegedly retaliatory action
    "had no impact on any employment relationship that Nelson had, or
    might have in the future." Id. at 389. In Charlton v. Paramus Bd. of
    Education, 
    25 F.3d 194
     (3d Cir. 1994), we held that a former employee
    could state a claim for retaliation arising out of post-employment
    conduct, so long as the retaliation affected the plaintiff's future
    employment opportunities. 
    Id. at 200-01
    . We noted that retaliation
    claims have been permitted "where the retaliation results in discharge
    from a later job, a refusal to hire the plaintiff, or other professional or
    occupational harm." 
    Id. at 200
    .
    Although the instant case does not require us to resolve the issue, it
    appears from our decisions in Nelson and Charlton that a plaintiff who
    claims that the alleged retaliation prejudiced his or her ability to obtain
    or keep future employment would meet the standard we announce today
    by showing that the retaliatory conduct was related to his or her future
    employment and was serious enough to materially alter his or her future
    employment prospects or conditions. See, e.g., Smith v. St. Louis
    University, 
    109 F.3d 1261
    , 1266 (8th Cir. 1997) (negative references
    causing potential employers to decline to hire plaintiff constitute
    actionable retaliation); Ruedlinger v. Jarrett , 
    106 F.3d 212
    , 214 (7th Cir.
    1997) (providing information to subsequent employer that caused it to
    fire plaintiff constitutes retaliation that "impinge[s] on her `future
    employment prospects or otherwise ha[s] a nexus to employment' ")
    (quoting Veprinsky v. Fluor Daniel, Inc., 
    87 F.3d 881
    , 891 (7th Cir.
    1996)); Passer v. American Chemical Society, 
    935 F.2d 322
    , 331 (D.C.
    Cir. 1991) (under parallel provision of the ADEA, holding that
    defendant's retaliatory cancellation of a seminar planned in honor of
    plaintiff gave rise to retaliation claim because the cancellation humiliated
    22
    We hold that Robinson's allegations that she was
    subjected to "unsubstantiated oral reprimands" and
    "unnecessary derogatory comments" following her
    complaint do not rise to the level of the "adverse
    employment action" required for a retaliation claim. See
    Wanamaker v. Columbia Rope Co., 
    108 F.3d 462
    , 465-66
    (2d Cir. 1997) ("barring a terminated employee from using
    an office and phone to conduct a job hunt presents only a
    minor, ministerial stumbling block toward securing future
    employment" and thus did not constitute adverse
    employment action under parallel provisions of the ADEA);
    Veprinsky, 
    87 F.3d at 895
     (former employer's subsidizing of
    attorney for an individual sued by plaintiff was "entirely
    unrelated to employment" and resulted in "too intangible"
    adversity to plaintiff and thus could not give rise to a
    retaliation claim); Williams, 
    85 F.3d at 274
     (lateral transfer
    involving small indirect effect on employee's earnings from
    commissions "cannot rise to the level of a materially
    adverse employment action"). See also McDonnell, 
    84 F.3d at 258
     (implying in dicta that "anger, irritation, dirty looks,
    even the silent treatment can cause distress" but do not
    constitute materially adverse employment action); Harley v.
    McCoach, 
    928 F. Supp. 533
    , 541-42 (E.D. Pa. 1996).
    B. In addition, much of what Robinson characterizes as
    retaliation for her EEOC complaint is in fact alleged to have
    occurred before she filed the complaint. What Dickerson
    may have done after Robinson "refut[ed] one of his
    advances" might constitute evidence of a hostile work
    environment or of quid pro quo harassment, but since it
    happened before Robinson filed her complaint, Robinson
    cannot establish a causal connection between her
    complaint and the conduct. What remains of Robinson's
    evidence is essentially as follows: (1) that a co-worker
    named Mona Wallace retaliated against Robinson by
    restricting her computer access during the summer of 1994
    _________________________________________________________________
    plaintiff in the eyes of his peers "and made it more difficult for him to
    procure future employment"); Sherman v. Burke Contracting, Inc., 
    891 F.2d 1527
    , 1532 (11th Cir. 1990) (retaliation claim proper where
    plaintiff's former employer persuaded plaintiff's new employer to fire
    him).
    23
    to weekdays, in contrast to Robinson's previously
    unrestricted access; and (2) that the "ten-car memo" written
    by Edwards and sent to Bochter, Dickerson, and Buford
    was a retaliatory attempt to force Robinson to return to
    working under the direct supervision of Dickerson, her
    alleged harasser. Assuming arguendo that Wallace's
    conduct and Edwards's memo constitute "adverse
    employment action," we do not believe that Robinson
    demonstrated the required "causal link" between her
    complaint and either Wallace's conduct or Edwards's
    memo. Aman, 
    88 F.3d at 198
    .
    Robinson testified that one Saturday during the summer
    of 1994, she attempted to work on her computer but was
    unable to do so because her authorization had been
    restricted to weekdays. (App. 240) Before that time,
    Robinson had had unrestricted computer access. (App. 240)
    Wallace, who was a co-worker of Robinson's, is not
    implicated in any way in any of the alleged sexual
    harassment. Robinson points to no evidence that anyone
    other than Wallace was involved in the decision to restrict
    her computer access, and she offers no evidence of any sort
    to show that Wallace took this action in retaliation for
    Robinson's complaint. On the contrary, Robinson relies
    merely on a post hoc, ergo propter hoc inference from the
    fact that the restriction was imposed after Robinsonfiled
    her complaint.
    Our cases are seemingly split on the question whether
    the timing of the allegedly retaliatory conduct can, by itself,
    support a finding of causation. Compare Jalil v. Avdel
    Corp., 
    873 F.2d 701
    , 708 (3d Cir. 1989) (plaintiff
    "demonstrated the causal link . . . by the circumstance that
    the discharge followed rapidly, only two days later, upon
    Avdel's receipt of notice of [his] EEOC claim") with Delli
    Santi v. CNA Ins. Co., 
    88 F.3d 192
    , 199 n.10 (3d Cir. 1996)
    ("timing alone will not suffice to prove retaliatory motive").
    In Woodson v. Scott Paper Co., 
    109 F.3d 913
    , 920 (3d Cir.
    1997), relying on Jalil, we stated in dicta that "temporal
    proximity between the protected activity and the
    termination is sufficient to establish a causal link." On the
    other hand, in Quiroga v. Hasbro, Inc., 
    934 F.2d 497
     (3d
    Cir. 1991), we characterized our statement in Jalil that the
    24
    "timing of the discharge in relation to Jalil's EEOC
    complaint may suggest discriminatory motives" as the
    holding of that case, and stated that in Jalil "we stopped
    short of creating an inference based upon timing alone." 
    Id. at 501
     (emphasis added).
    We believe that, if Jalil is to be interpreted as holding
    that timing alone can be sufficient, that holding must be
    confined to the unusually suggestive facts of Jalil. Thus,
    even if timing alone can prove causation where the
    discharge follows only two days after the complaint, the
    mere fact that adverse employment action occurs after a
    complaint will ordinarily be insufficient to satisfy the
    plaintiff's burden of demonstrating a causal link between
    the two events. See Quiroga, 
    934 F.2d at 501
     (holding that,
    "[a]s a matter of fact," the timing of Quiroga's alleged
    constructive discharge was not independently sufficient to
    prove it was caused by his complaint). There is no evidence
    that Wallace's restriction of Robinson's computer access
    followed immediately upon her complaint, so this is thus
    not one of the extraordinary cases where the plaintiff can
    demonstrate causation simply by pointing to the timing of
    the allegedly retaliatory action. Accordingly, we reject
    Robinson's claim that Wallace's action constituted unlawful
    retaliation.16
    _________________________________________________________________
    16. Because Robinson has failed to present evidence of a causal
    connection between her complaint and Wallace's conduct, Robinson has
    not made out a prima facie case that Wallace's conduct constituted
    retaliation. See, e.g., Aman, 
    85 F.3d at 1085
    . Defendants therefore were
    not required to proffer a legitimate, non-discriminatory reason for
    Wallace's conduct. However, they did so, presenting evidence that
    Wallace restricted Robinson's access because Robinson had been
    committing security breaches (for example, by bringing files home) and
    that Wallace took this action entirely on her own. (App. 562-66, 579) If
    defendants were obligated to proffer such an explanation, Robinson
    would then have the burden of presenting evidence from which a
    reasonable jury could conclude either that "the articulated reason is a
    pretext for the retaliation or that a discriminatory reason more likely
    motivated the employer." Delli Santi, 
    88 F.3d at 199
    . Robinson has not
    pointed to any implausibilities, inconsistencies, contradictions,
    incoherencies, or the like in Wallace's testimony, see Sheridan, 
    100 F.3d at 1072
    , and has not even attempted to explain why the jury should
    25
    A similar analysis applies to the "ten-car memo" written
    by Edwards in June 1994. Before that time, Robinson had
    been assigned to the "ten-car" (a drug suppression vehicle)
    but had been detailed to criminal intelligence where she
    worked under Bochter. Dickerson was in charge of the ten-
    car but had no supervisory authority over the criminal
    intelligence unit. The ten-car memo states that "due to the
    increased activity in the downtown area and with the
    ending of the school year, the need for the extra assistance
    that the ten car provides has increased. Due to these facts,
    effective immediately, all personnel assigned to a ten car is
    [sic] to be immediately informed that they will ride the
    vehicle that they are assigned to." (App. 237)
    Robinson seeks to portray this memo as a pretextual
    attempt to force her to work under Dickerson after having
    filed a complaint against him. However, it is undisputed
    that the memo was not applied to Robinson; she remained
    in the criminal intelligence unit from June 1994 (when the
    memo was circulated) until October 1994, when she
    stopped reporting for work. (App. 239-40, 249-50) Again,
    Robinson attempts to link the ten-car memo to her
    complaint simply by pointing to the temporal sequence of
    the two events, but in light of the circumstances noted
    above, this is insufficient. There is consequently no basis
    for a finding that the ten-car memo constituted retaliation
    against Robinson for her complaint of discrimination.
    Robinson's final argument is that the jury would have
    been entitled to return a verdict for her on her retaliation
    claim if it had agreed that she was subjected to a hostile
    work environment. She relies on our statement in Aman
    that "an atmosphere of condoned sexual harassment in the
    workplace increases the likelihood of retaliation for
    complaints in individual cases," 85 F.3d at 1086, but that
    _________________________________________________________________
    disbelieve Wallace. Nor does the record itself suggest any such reason.
    Rather than showing that Wallace was in league with Dickerson or
    management generally, the record in fact reveals that Wallace
    accompanied Robinson to the EEOC as "moral support" when Robinson
    filed her complaint. (App. 560) We therefore hold, in the alternative, that
    Robinson failed to present evidence undermining defendants' proffered
    legitimate, non-discriminatory explanation for the challenged conduct.
    26
    statement is merely an empirical prediction; it is not a legal
    theory that obviates the presentation of actual evidence of
    retaliation. In Hawkins v. Hennepin Technical Center, 
    900 F.2d 153
    , 156 (8th Cir. 1990), the source of the cited
    statement from Aman, the court held that the plaintiff
    should have been allowed to present evidence of the
    defendant's prior acts of sexual harassment, even if those
    acts were not independently actionable, in order to cast
    doubt upon the credibility of the defendant's proffered
    legitimate, non-discriminatory explanation for the allegedly
    retaliatory conduct. 
    Id. at 155-56
    . In Hawkins, the plaintiff
    had enough evidence of retaliation to get to the jury even
    without the evidence of "condoned sexual harassment," so
    the court's decision cannot be read as upholding the
    argument that Robinson urges upon us here.17
    _________________________________________________________________
    17. In Glass v. Philadelphia Elec. Co., 
    34 F.3d 188
    , 195 (3d Cir. 1994),
    we quoted the Eighth Circuit's statement in Hawkins with approval in
    support of the proposition that evidence that Glass had been subjected
    to racial harassment during a time period for which he received an
    unfavorable performance rating was relevant to show that that rating
    was of questionable validity and thus that the employer's reliance on
    that rating in denying Glass certain promotions was pretextual.
    Therefore, like Hawkins itself, Glass does not support the view that
    evidence that the employer condoned sexual harassment suffices to
    prove the element of the employee's prima facie case requiring a causal
    link between his or her complaint and a subsequent adverse employment
    action.
    In Woodson, we stated that evidence that the employer condoned a
    harasser's conduct can contribute to an inference that subsequent
    adverse employment action taken by the harasser against the plaintiff
    was causally linked to the plaintiff's complaint about the harassment.
    109 F.3d at 922. This observation rests upon the recognition that, if the
    harasser got away with the harassment, it is more likely that he or she
    will believe that retaliation will be safe as well, and conversely, if the
    employer took prompt and adequate action against the harasser, the
    harasser will be less confident of his or her ability to engage in
    retaliation with impunity. In this case, however, Robinson does not
    contend that Dickerson -- the alleged harasser-- took any retaliatory
    action against her.
    In any event, we made it clear in Woodson that this sort of evidence
    was not independently sufficient to support an inference of causation.
    See id. at 921. Whereas Woodson presented other extensive evidence,
    Robinson seeks to rely solely on evidence that Dickerson subjected her
    27
    In light of the foregoing, we affirm the district court's
    grant of judgment as a matter of law to defendants on
    Robinson's Title VII and § 1983 retaliation claims.18
    VI.
    Jury Instruction on Employer Liability
    The district court denied the City's motion for judgment
    as a matter of law as to Robinson's claim under Title VII for
    a hostile work environment, and the jury returned a verdict
    for the City. Robinson contends that this verdict must be
    upset because the court erred in its instruction to the jury
    on the issue of employer respondeat superior liability under
    Title VII for hostile environment sexual harassment.19 As we
    _________________________________________________________________
    to a hostile work environment and that the City failed to take prompt
    and adequate action to remedy the harassment. If we were to uphold
    Robinson's argument, every employee who succeeds on a hostile
    environment claim would be able to prove a causal link between his or
    her complaint of harassment and any subsequent adverse employment
    action. We do not believe that actual proof of retaliatory motive can be
    dispensed with so easily.
    18. In addition to the grounds described in the text, which apply equally
    to Robinson's Title VII retaliation claim and her§ 1983 retaliation claim,
    we hold that judgment as a matter of law was properly granted in favor
    of Edwards and Buford on Robinson's § 1983 retaliation claim on the
    ground that neither Edwards nor Buford was personally involved in any
    retaliation. See Part III, supra. We also affirm the grant of judgment as
    a matter of law to the City on the § 1983 retaliation claim on the
    additional ground that there was no evidence of a municipal policy or
    custom encouraging or permitting retaliation. See Part III.C, supra.
    19. In order to prevail on a claim under Title VII for a hostile work
    environment based on sex, an employee must prove that: "(1) he or she
    suffered intentional discrimination because of his or her sex; (2) the
    discrimination was pervasive and regular; (3) the discrimination
    detrimentally affected the plaintiff; (4) the discrimination would
    detrimentally affect a reasonable person of the same sex in that position;
    and (5) respondeat superior liability existed." Knabe v. The Boury Corp.,
    ___ F.3d ____, ____, 
    1997 WL 282905
    , *3 (3d Cir.)(citing Andrews, 
    895 F.2d at 1482
    ). It is undisputed on appeal that Robinson presented
    sufficient evidence of all five elements to create a jury question.
    28
    noted in Bouton v. BMW of N. Am., Inc., 
    29 F.3d 103
     (3d
    Cir. 1994), the Supreme Court "has instructed courts to
    use agency principles when deciding employer liability for
    sexually hostile work environments." 
    Id.
     at 106 (citing
    Meritor Sav. Bank, FSB v. Vinson, 
    477 U.S. 57
    , 72 (1986)).
    We explained that:
    The Restatement (Second) of Agency § 219 provides
    three potential bases for holding employers liable for
    sexual harassment perpetrated by their employees.
    Section 219(1) holds employers responsible for torts
    committed by their employees within the scope of their
    employment. . . . [In addition,] [u]nder§ 219(2)(b),
    masters are liable for their own negligence or
    recklessness; in a harassment case, this is typically
    negligent failure to discipline or fire, or failure to take
    remedial action upon notice of harassment. Finally,
    under § 219(2)(d), if the servant relied upon apparent
    authority or was aided by the agency relationship, the
    master is required to answer.
    Id. In the instant case, Robinson contended that the City
    should be held liable for Dickerson's alleged harassment on
    the theory that the City had notice of the harassment yet
    failed to take remedial action to put a stop to it. See Knabe
    v. The Boury Corp., ___ F.3d ___, ___, 
    1997 WL 282905
    , *4
    (3d Cir.) (same).
    The court charged the jury as follows:
    To prove the fifth element [respondeat superior liability
    on the part of the City], wife-plaintiff must prove that
    the City of Pittsburgh was negligent insofar as its
    procedure for handling sexual harassment complaints
    was not effective. It is important for you, the jury, to
    understand that the City of Pittsburgh may only be
    held liable for the existence of a sexually hostile
    working environment that results from its own
    negligence. The City may not be held liable simply
    because one of its employees engaged in sexual
    harassment.
    Thus, if the City of Pittsburgh had an effective
    procedure for handling sexual harassment complaints
    at the time of the alleged incidents, the City was not
    29
    negligent and it cannot be held liable for the improper
    conduct of its employees.
    In order to determine whether the City of Pittsburgh
    was negligent in this case, you must decide whether its
    sexual harassment procedure was effective. A sexual
    harassment procedure is effective if it is both known to
    the victim of sexual harassment and its [sic] use of the
    procedure timely stops the harassment.
    (App. 1331-32). Robinson timely objected to this charge
    (App. 1310-11, 1314-15), arguing that "I think we've shown
    evidence where there was not an effective procedure.. . .
    [U]nder the facts of this case you can't presume there was
    an effective procedure, because the procedure required
    Chief Edwards to take action, and he didn't." The court
    responded that it was not, in fact, "presuming" that the
    City had an effective anti-harassment procedure, and stated
    that "[i]t's the jury's job to decide whether it was effective or
    not." (App. 1311) We exercise plenary review over the jury
    instructions in order to determine whether, read as a
    whole, they stated the correct legal standard. Miller v.
    CIGNA Corp., 
    47 F.3d 586
    , 591 (3d Cir. 1995) (en banc).
    In Bouton, the case upon which the district court relied
    in its jury charge, we held that "under negligence
    principles, prompt and effective action by the employer will
    relieve it of liability." Bouton, 
    29 F.3d at 107
     (emphasis
    added). Robinson argues that the charge based on Bouton
    was inappropriate because the complaint in that case did
    end the harassment, while her complaint did not. According
    to Robinson, the court should have based its jury
    instruction on Andrews, a case where the complaint did not
    put a stop to the harassment. Robinson's argument is
    nothing more than a contention that the City's action in
    this case was not "effective." But whether Robinson's
    complaint put a stop to the harassment -- and whether any
    harassment occurred in the first place -- were factual
    issues committed to the jury. The basic problem with
    Robinson's argument is that it challenges the jury's verdict,
    not the court's charge.
    Robinson contends that, even if the City put an end to
    the harassment by transferring Dickerson following her
    30
    May 1994 complaint, the City should have taken such
    action in 1992 when she first spoke to Edwards about
    Dickerson's "hitting on her." But Robinson argued at trial
    that her 1992 conversation with Edwards constituted an
    attempt to avail herself of the City's anti-harassment
    procedure, and that the City failed to respond adequately to
    her complaint. (App. 1405) If the jury had believed that the
    1992 conversation had taken place and that Robinson had
    made it sufficiently clear to Edwards that she was
    complaining about conduct that she perceived as sexual
    harassment, the jury could have held the City liable. That
    it did not do so is not a basis to attack the charge.
    Robinson's argument, both as quoted above in her
    objection to the charge in the district court and on appeal,
    runs more like an argument in favor of judgment as a
    matter of law that the City did not take adequate remedial
    action once it learned of the harassment than a challenge
    to a jury instruction. Robinson did not move for such a
    judgment, however, and it is plain that no such judgment
    would have been warranted in view of the evidentiary
    disputes regarding whether the harassment occurred and
    when the City found out about it. As the district court put
    it, "it's the jury's job to decide whether [the City's anti-
    harassment procedure] was effective or not." We reject
    Robinson's argument that the Bouton charge was
    inappropriate on the facts of her case, because it was for
    the jury in its verdict, not the court in its charge, to decide
    what the facts of this case were.20
    _________________________________________________________________
    20. After the trial in this case, we decided Knabe v. The Boury Corp., ___
    F.3d ____, 
    1997 Wl 282905
     (3d Cir.). As noted above, in Bouton we
    articulated the standard as whether the employer's remedial action was
    "effective." See 
    29 F.3d at 107
    . In Andrews, we phrased the standard
    somewhat differently, stating that the employer will be liable if its
    remedial action was not "adequate." See 
    895 F.2d at 1486
    . If there was
    any conflict between the "adequacy" standard expressed in Andrews and
    the "effectiveness" standard set forth in Bouton, Knabe has resolved it. In
    Knabe, we rejected the plaintiff's argument that an employer is liable
    unless it took remedial action that was actually "effective" to put a stop
    to the harassment in the particular case at hand. We held instead that
    a remedial action is "adequate" if it was "reasonably calculated to
    prevent further harassment," whether or not it actually succeeded in
    doing so. 
    Id.
     at __, *5 (citations omitted). See also 
    id.
     at __, *4 n.8.
    Therefore, the charge in this case arguably misled the jury into believing
    that the City's response had to be actually effective. Of course, in view
    of the jury's verdict for the City, no prejudice flowed from this possible
    error.
    31
    VII.
    After the district court granted defendants' motion for
    judgment as a matter of law on Robinson's quid pro quo
    harassment and retaliation claims, defendants' counsel
    asked the court to remove from the record certain exhibits
    that "were offered with relation to those claims." (App.
    1307). The court then went through the exhibits in
    question with counsel and excluded all but two of them.
    (App. 1308-13) Later, in charging the jury, the court listed
    the claims that it had "disposed of" and told the jury that
    "these claims are of no concern to you. The evidence you
    heard concerning these claims is no longer relevant and
    should not be considered by you." (App. 1326) On appeal,
    Robinson argues that these evidentiary rulings and this
    statement were erroneous because evidence of quid pro quo
    harassment and retaliation, even if it does not concern
    conduct that is serious enough to be independently
    actionable on a quid pro quo or a retaliation theory, may
    nevertheless be relevant to show a hostile work
    environment. These errors, she submits, require reversal of
    the jury's verdict in favor of the City on her Title VII hostile
    environment claim.
    We need not consider this argument, because we do not
    believe that Robinson raised it in the district court. Fed. R.
    Civ. P. 46 requires "that a party, at the time the ruling or
    order of the court is made or sought, make[ ] known to the
    court the action which the party desires the court to take
    or the party's objection to the action of the court and the
    grounds therefor." We conclude that, while Robinson may
    have made a timely objection to the evidentiary exclusions
    that she contests, she at no time made known to the
    district court the ground that she now presses in this
    court.
    As noted, the court analyzed each exhibit that defendants
    sought to exclude. For most of the exhibits mentioned
    during that process, plaintiffs' counsel voiced no objection,
    and neither of the two objections that he did raise related
    to the argument described above upon which Robinson now
    relies. First, plaintiffs' counsel objected to the exclusion of
    exhibit 57-X, arguing that it was relevant to undermine the
    credibility of a witness named Gail Payne by showing "her
    32
    motive in giving testimony the way she did and what she
    said." (App. 1308) The court disagreed, and removed the
    exhibit from the record. Next, counsel argued that exhibit
    78 was relevant to show that the City's response to
    Robinson's complaint of harassment was ineffective. (App.
    1310) The court disagreed, stating that the exhibit only
    "has to do with retaliation." (App. 1311) Robinson does not
    renew either of these objections on appeal. After the court
    and counsel had gone through all of the exhibits at issue,
    plaintiffs' counsel stated that "[t]o make the record clear,
    Your Honor, I would just like to for the record, to formally
    object to the Court's ruling based on the Bouton case and
    the evidentiary rulings you just made." (App. 1315) Counsel
    offered no further explanation of the grounds for this
    objection.
    Subsequently, in charging the jury, the court made the
    statement quoted above that Robinson now challenges.
    After completing the jury charge, the court told counsel at
    sidebar that "[n]ow is your opportunity to put exceptions to
    the charge on record." (App. 1348) Plaintiffs' counsel did
    not mention the challenged statement, and did not
    otherwise make known the argument that Robinson now
    makes on appeal.
    We therefore conclude that plaintiffs' counsel never gave
    the district court any reason to believe that he was making
    the argument that evidence of quid pro quo harassment
    and retaliation, even if not actionable on those theories,
    was nevertheless relevant to show a hostile work
    environment. Because Robinson did not raise that
    argument in the district court, we decline to consider it on
    appeal.21
    _________________________________________________________________
    21. Robinson argues that the court erred in refusing to allow her to
    present evidence that the City transferred officers to the detective bureau
    on the basis of nepotism and favoritism, in violation of its written
    policies. We find no error in the district court's ruling that the proffered
    evidence could not give rise to a reasonable inference of discrimination
    because of sex. Finally, Robinson challenges the court's refusal to admit
    the report prepared by the City's Office of Professional Responsibility
    that found that Dickerson had created an "uncomfortable" work
    environment for another woman. The court allowed Robinson to elicit the
    33
    VIII.
    For the reasons stated in this opinion, we affirm the
    district court's grant of defendants' motion for judgment as
    a matter of law with respect to Robinson's claims under
    § 1983 against Buford, Edwards, and the City for sex
    discrimination and retaliation and Robinson's claim under
    Title VII against the City for retaliation. We reverse the
    grant of judgment as a matter of law with respect to
    Robinson's claim under Title VII for quid pro quo sexual
    harassment against the City and remand for trial of that
    claim. On remand, the district court should ascertain
    whether Robinson seeks to pursue a claim under § 1983 for
    quid pro quo harassment against Dickerson, and if so,
    whether she should be permitted to do so in light of the
    prior proceedings in this case. See n.14, supra. In all other
    respects, we affirm the district court's rulings and its entry
    of judgment upon the jury's verdict.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    _________________________________________________________________
    report's conclusions as admissions by the City, but excluded the report
    itself as irrelevant. Robinson contends that the report shows notice to
    the City of Dickerson's alleged harassment of her. We find no error here
    as well. The conduct on the part of Dickerson discussed in the report is
    not his alleged harassment of Robinson, so the report in no way put the
    City on notice that Dickerson was harassing Robinson.
    34
    

Document Info

Docket Number: 95-3594

Citation Numbers: 120 F.3d 1286

Filed Date: 7/14/1997

Precedential Status: Precedential

Modified Date: 1/12/2023

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