Jennifer Stein v. Monty Wilkinson ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 22-2862
______
JENNIFER STEIN,
Appellant
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-21-cv-00272)
District Judge: Honorable Malachy E. Mannion
____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
May 17, 2023
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Before: CHAGARES, Chief Judge, GREENAWAY, JR., and PHIPPS, Circuit Judges.
(Filed: June 14, 2023)
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OPINION*
___________
PHIPPS, Circuit Judge.
After a romantic relationship between two correctional officers ended, one of
them, Jory Eisenmann, began to harass the other, Jennifer Stein. But they still worked
together, and one morning they had an intense argument at the prison. In response to a
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
complaint by Stein, the prison altered Eisenmann’s work conditions but left Stein’s
schedule and post unchanged. Those measures kept them apart for about two years, but
then the two crossed paths at work a handful of times over a three-month period.
Afterwards, Stein sued under Title VII of the Civil Rights Act of 1964 for sex
discrimination, alleging a hostile work environment and retaliation. The District Court
rejected those claims at summary judgment, and on appeal, Stein now disputes the
judgment as to her hostile-work-environment claim. On de novo review, we will affirm
the District Court’s judgment.
FACTUAL BACKGROUND & PROCEDURAL HISTORY
Jennifer Stein is a correctional officer with the Federal Bureau of Prisons (the
‘BOP’), an agency within the United States Department of Justice. For almost ten years,
she has worked in that role at the United States Penitentiary Canaan in Waymart,
Pennsylvania. Starting in 2014, she began to date intermittently another correctional
officer at the prison, Jory Eisenmann. They ended their relationship for good in early
2017.
Eisenmann did not handle the break-up well. On the morning of August 8, 2017,
after weeks of badgering Stein with phone calls, he followed Stein in from the prison
parking lot, cornered her in the officers’ mailroom, and began screaming at her to return
his furniture. As part of his invective, Eisenmann called Stein a “whore” and puffed up
his chest to shove her and prevent her from leaving. App. 113 ¶ 31. Even after Stein
escaped the mailroom, Eisenmann followed her down the corridor and continued to insult
her until she entered a lieutenant’s office. At the lieutenant’s urging, Stein reported the
mailroom incident. With her supervisors’ permission, she also left work to seek an
emergency petition for protection from abuse (‘PFA’). She received a PFA order from a
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local court that day. Before that incident, Stein had not reported any sexual harassment
by Eisenmann to anyone in her chain of command, and that was the first time her
superiors learned of tensions between the two of them.
In response to the report of Eisenmann’s harassment, the prison warden formed a
threat-assessment committee to investigate. The committee interviewed both Stein and
Eisenmann and, on August 30, the warden approved a personal protection plan for Stein.
In seeking to separate them at work, that plan brought sweeping changes for
Eisenmann’s workday but left unchanged Stein’s post and work schedule. The BOP
transferred Eisenmann to the minimum-security satellite camp located a mile from the
penitentiary, changed his hours, and prohibited him from entering the penitentiary
without informing his supervisor in advance and obtaining an escort. The BOP also
issued a cease-and-desist order to Eisenmann, under which he had to avoid
unprofessional contact with Stein. By contrast, Stein remained at her post at USP Canaan
to work the same days and hours. Beyond the day-to-day, the plan mandated that the two
officers attend separate trainings. And as a final protective measure, the plan directed
Stein to report workplace contact of any kind from Eisenmann.
For the two years following the start of the plan, Stein and Eisenmann had no
contact at work. In June 2018, about ten months after the plan was implemented, Stein
took a leave of absence to recover from a work-related injury. Soon after she left, the
BOP returned Eisenmann to the penitentiary to mitigate staffing shortages, and it notified
Stein of that development. Several months later, in February 2019, after Stein returned to
work in the penitentiary’s administration building, Eisenmann would sometimes exit the
facility through the staff screening room where she was stationed, but the two never made
contact there.
3
In September 2019, Stein had the first of a handful of workplace interactions with
Eisenmann. One day, as Stein arrived at the sally port of one of the penitentiary’s
housing units, she found Eisenmann standing in the doorway glaring at her with his arms
folded and chest puffed out. He also quipped to another female colleague that “here
comes your girl coming for property.” App. 926. The next month, Eisenmann took two
voluntary shifts in Stein’s post and again stared at her. And then in November 2019,
Eisenmann sent Stein an email at work about an inmate who did not receive his property
back, asking her to “please check and see if he has any property at all in the property
room.” Id. at 1188.
Following these events, Stein initiated the process for pursuing a claim for sex
discrimination. Upon exhausting the administrative process, Stein filed this federal
action in February 2021. Invoking the jurisdiction of the United States District Court for
the Middle District of Pennsylvania, see 42 U.S.C. § 2000e-5(f)(3), she brought hostile-
work-environment and retaliation claims against the Attorney General in his official
capacity as agency head.1 She alleged that the BOP fostered a hostile work environment
by failing to control Eisenmann’s harassment, and that it retaliated against her for
reporting Eisenmann and for making an earlier unrelated complaint by passing over her
for awards and promotions, scheduling Eisenmann to work in her post, denying her
requests for administrative leave, and marking her as ‘AWOL’ when she was absent from
work.
1
Stein commenced this action against the Acting Attorney General, for whom the
Attorney General was later substituted. See Fed. R. Civ. P. 25(d) (providing for the
automatic substitution at the district-court level of public officers sued in their official
capacities); cf. also Fed. R. App. P. 43(c)(2) (providing for the automatic substitution at
the appellate level of public officers sued in their official capacities).
4
After a period of discovery, the Attorney General moved for summary judgment
on several grounds. With respect to Stein’s hostile-work-environment claim, the
Attorney General argued that she failed to show that Eisenmann mistreated her on
account of her gender, that she did not experience severe or pervasive harassment, and
that the Attorney General cannot be held liable for Eisenmann’s harassment. And as to
Stein’s retaliation claim, the Attorney General maintained that she could not establish a
prima facie case or, in the alternative, show that the BOP’s articulated, non-
discriminatory reasons for the challenged employment decisions were pretextual. The
District Court granted that motion and entered judgment against Stein on both of her
claims.
Stein timely appealed that final order, bringing the matter within this Court’s
appellate jurisdiction. See 28 U.S.C. § 1291. On appeal, Stein meaningfully contests
only the rejection of her hostile-work-environment claim.2 The Attorney General defends
the entry of summary judgment on the grounds that Stein was not subject to a hostile
work environment and that, in any event, there is no basis for employer liability regarding
Eisenmann’s misconduct.
DISCUSSION
A hostile-work-environment claim under Title VII requires not only proof of
“severe or pervasive” harassment but also “a basis for employer liability.” Komis v.
2
Stein’s appellate brief does not develop any separate argument that the District Court
erred in rejecting her retaliation claim, and without more, that issue has not been properly
presented. See Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 145
(3d Cir. 2017) (explaining that this Court has “consistently refused to consider ill-
developed arguments or those not properly raised and discussed in the appellate
briefing”); John Wyeth & Bro. Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070, 1076 n.6 (3d
Cir. 1997) (refusing to consider “arguments raised in passing . . . but not squarely
argued”).
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Sec’y of U.S. Dep’t of Lab., 918 F.3d 289, 293 (3d Cir. 2019) (quoting Jensen v. Potter,
435 F.3d 444, 449 (3d Cir. 2006), overruled in part on other grounds by Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)). Like other employers, the liability of
federal agencies for a hostile work environment often “depends on whether the harasser
is the victim’s supervisor or merely a coworker.” Huston v. Procter & Gamble Paper
Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009); see also Komis, 918 F.3d at 294(explaining that “many courts have consistently interpreted [42 U.S.C.] § 2000e-16(a) ‘to
give federal employees the same rights as private employees’” (quoting Porter v. Adams,
639 F.2d 273, 277–78 (5th Cir. 1981))); Taylor v. Solis, 571 F.3d 1313, 1318–20 (D.C.
Cir. 2009) (applying private standards of employer liability to a hostile-work-
environment claim against a federal agency). And here, Stein does not contend that
Eisenmann, as a fellow correctional officer, had supervisory responsibility over her. See
Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 216 (3d Cir. 2017) (explaining that an
employee is a supervisor for purposes of a hostile-work-environment claim “if he or she
is ‘empowered by the employer to take tangible employment actions’” against the victim
(quoting Vance v. Ball State Univ., 570 U.S. 421, 424 (2013))). Nor does she develop
any other argument for supervisor liability.3
Instead, Stein’s case rests on a theory of co-worker liability. An employer can be
held liable for harassment by one of the victim’s non-supervisory coworkers only in two
scenarios: (i) “the employer failed to provide a reasonable avenue for complaint,” or
3
Stein’s brief does state that her “supervisors and co-workers created a hostile work
environment.” Opening Brief 20. And it points out that one of her lieutenants walked by
the mailroom during her altercation with Eisenmann and so may have been aware of the
nature of their argument just prior to Stein’s report of it that morning. But without any
legal argument associated with that fact, Stein has forfeited any claim premised on
supervisor liability. See John Wyeth, 119 F.3d at 1076 n.6.
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(ii) “the employer knew or should have known of the harassment and failed to take
prompt and appropriate remedial action.” In re Trib. Media Co., 902 F.3d 384, 400 (3d
Cir. 2018) (quoting Huston, 568 F.3d at 104); see also Vance, 570 U.S. at 424 (“If the
harassing employee is the victim’s co-worker, the employer is liable only if it was
negligent in controlling working conditions.”). Here, Stein does not argue that the BOP
provided an inadequate process for making complaints about sexual harassment at USP
Canaan. Rather, she seeks to establish employer liability for coworker harassment
through the second approach.
To succeed on such a theory, Stein must demonstrate that the BOP “was negligent
in failing to discover the co-worker harassment or in responding to a report of such
harassment.” Huston, 568 F.3d at 105. But unless the misconduct should have been
discovered earlier, liability under this approach does not attach when an employer, upon
learning of harassment by the victim’s coworker, takes prompt action that “is reasonably
calculated to prevent further harassment.” Id. at 110 (quoting Knabe v. Boury Corp.,
114 F.3d 407, 411 n.8 (3d Cir. 1997)). Thus, as a matter of law, a response by the
employer that is effective, i.e., one that in fact prevents further harassment, is adequate
and insulates the employer from liability for a hostile-work-environment claim. See
Jensen, 435 F.3d at 453; Huston, 568 F.3d at 110 (“[T]he employer cannot be liable
under Title VII if its remedial action stopped the harassment.”).
In this case, the BOP took prompt remedial action in response to Stein’s report of
the mailroom incident.4 The day of the incident, Stein’s lieutenants had her draft a
4
Stein also briefly asserts that the BOP should have discovered that Eisenmann was
harassing her before the August 2017 mailroom incident. But her testimony that her
coworkers at USP Canaan knew of her relationship with Eisenmann and his poor
treatment of her does not overcome her admission that before the mailroom incident she
never reported any episodes of sexual harassment to those in her chain-of-command, or
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detailed memorandum regarding Eisenmann’s harassment, and they immediately reported
the incident up the chain-of-command to the prison’s warden. Upon receiving that
report, the warden convened a threat-assessment committee the same day. That
committee then interviewed both parties and developed a personal protection plan to keep
Stein safe at work. Under that plan, the BOP reassigned Eisenmann, changed his hours,
issued him a cease-and-desist order, and implemented additional controls to prevent him
and Stein from being alone together at work.
In addition to its promptness, the BOP’s response was effective. Stein and
Eisenmann did not have any interactions at work for over two years. And the interactions
they had after that time were sporadic and did not rise to the level of harassment: those
episodes consisted of a caustic quip, unfriendly body language, and an email that, at least
on its face, was work-related. See Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998) (explaining that Title VII does not reach “the sporadic use of abusive language,
gender-related jokes, and occasional teasing” (quoting Barbara Lindemann & David D.
Kadue, Sexual Harassment in Employment Law 175 (1992))); Burlington, 548 U.S. at 68(emphasizing that “Title VII . . . does not set forth ‘a general civility code for the
American workplace’” (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
80 (1998))); Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 716 (3d Cir. 1997)
(observing that “mute gestures” made by the plaintiff’s coworkers could not “be
her concession that her supervisors first learned of such harassment on the day of that
incident. Nor does Stein produce enough concrete facts to allow a reasonable jury to
conclude that management-level employees of the BOP otherwise knew or should have
known of any pre-August 2017 sexual harassment by Eisenmann. See Huston, 568 F.3d
at 105; see also Nitkin v. Main Line Health, 67 F.4th 565, 571 (3d Cir. 2023) (stressing
that a hostile-work-environment plaintiff “must point to concrete evidence in the record
that supports each and every essential element” of their claim (quoting Orsatti v. N.J.
State Police, 71 F.3d 480, 484 (3d Cir. 1995))).
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characterized as particularly severe” despite those coworkers having also harassed her
seven months earlier).
Because the BOP’s prompt response to Stein’s report of the mailroom incident
prevented further sexual harassment, it was adequate as a matter of law. See Knabe,
114 F.3d at 411 n.8. As the lack of employer liability resolves the controversy, it is
unnecessary to address the Attorney General’s other argument for affirmance, the
contention that Stein’s work environment was not hostile.
CONCLUSION
For these reasons, we will affirm the District Court’s summary judgment in favor
of the Attorney General.
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