## 1997 D e c i sion s O p inion s of the U nit e d
S t a t e s C our t of Appe al s for the Thir d C ir c uit

6-23-1997 

# Gr a ves v . Lo we r y

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 96-7277

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1997

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a
U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1997 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a
U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

## R e c omme nde d C it a t ion

" Gr a v e s v . L o w e r y " (1997). 1997 D e cisio n s

. P a pe r 138. h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1997/138Filed June 23, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-7277

MARCA M. GRAVES; ANTOINETTE R. TRUEITT; LAURA SEGARRA; DEBRA C. NAPPER; MARSHELL L. NAPPER; SHERRY L. REIFF; DOROTHY R. CLEMONS,

Appellants,

v.

HORACE A. LOWERY, Individually and in his official capacity as District Justice of the Magisterial Dis trict 12-1-04; THE COUNTY OF DAUPHIN; SUPREME COURT OF THE COMMONWEALTH OF PENNSYLVANIA, Commonwealth of Pennsylvania

APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 95-cv-01624)

ARGUED DECEMBER 12, 1996

BEFORE: BECKER, MANSMANN and LEWIS, Circuit Judges

.

(Filed June 23, 1997)James J. West (ARGUED)

105 North Front Street Harrisburg, PA 17101

Attorney for Appellants

A. Taylor Williams Supreme Court of Pennsylvania
Administrative Office of PA Courts 1515 Market Street, Suite 1414 Philadelphia, PA 19102

Attorney for Appellees, Horace A. Lowery and Supreme Court of Pennsylvania

David A. Wion (ARGUED) Jeffrey L. Troutman Office of County Solicitor County of Dauphin
Post Office Box 1295 Harrisburg, PA 17108

Leonard Tintner Boswell, Snyder, Tintner & Piccola
315 North Front Street
Post Office Box 741 Harrisburg, PA 17108-0741

Attorneys for Appellee, County of Dauphin

OPINION OF THE COURT

LEWIS, Circuit Judge

.

Seven former clerks, who worked in a state judicial district in Dauphin County, Pennsylvania (the "Cler ks"), brought a sex discrimination suit pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 e t seq. , in the Middle District of Pennsylvania, which named Da uphin County, among others, as a defendant. The district court

2dismissed the Clerks' complaint against Dauphin Cou nty

pursuant to Rule 12b(6) of the Federal Rules of Civ il Procedure on the ground that as a matter of law, Da uphin County could not be considered either the Clerks' "employer" or "co-employer." Graves v. Lowery , No. CV-95- 1624 (M.D. Pa. April 8, 1996). The Clerks appeal fr om the district court's order dismissing their complaint.

On appeal, we are asked to address a narrow and uni que question of employer liability under Title VII: whe ther the Clerks, who are formally considered employees of th e judicial branch of the Commonwealth of Pennsylvania , are precluded, as a matter of Pennsylvania law, from pu rsuing a federal employment discrimination claim against D auphin County, Pennsylvania. For the reasons stated below, we conclude that they are not so precluded. Accordingl y, we will reverse the district court's order.

I.

The issue for resolution here arises from the conti nued uncertainty surrounding the structure of Pennsylvan ia's judicial system. In 1968, the Pennsylvania Constitu tion was amended to create a "Unified Judicial System." Pa. Const. art. V, § I; 42 Pa. Cons. Stat. Ann. § 301 (West 19 81) (corresponding statutory provision). That system, h owever, has yet to be fully implemented. Most significantly , for example, county courts continue to be funded by the
individual counties in which those courts sit.1 Thu s, the salaries of court employees are paid by county gove rnments
rather than the state.

Because this system of funding is contrary to the i dea of a "Unified Judicial System," the Pennsylvania Supre me Court struck down the system as unconstitutional. S ee County of Allegheny v. Commonwealth , 534 A.2d 760 (Pa. 1987).2 The court then stayed its order, directing the state

___________________________________________________ ______________

1. Pennsylvania's unified court system consists of "the Supreme Court, the Superior Court, the Commonwealth Court, courts of common pleas, community courts, municipal and traffic courts in t he City of Philadelphia, such other courts as may be provided by law and justices of the peace." Pa. Const. art. V, § 1.

2. In particular, the Pennsylvania Supreme Court no ted that county funding of county courts was an impediment to judic ial unification

3legislature to enact a new funding system that woul d truly

"unify" the Pennsylvania judiciary. Id. at 765. To date, the state legislature has failed to enact a constitutio nal funding
scheme. See Jim Strader, Counties Want State to Fund Courts; Supreme Court Will Try Again to Persuade Legislature to Pay for Running County Courts , Pitt. Post Gazette, Jan. 5, 1997, at B5; Phyllis W. Beck, Fore word: A Blueprint for Judicial Reform in Pennsylvania , 62 Temp. L. Rev. 693, 697 (1988) (describing unification of the judicial system as still "at the drawing board stage"). As a consequence, the uncertain status of the Unified Ju dicial System continues to cause a myriad of funding-relat ed problems. See , e.g. , Jiuliante v. County of Erie , 657 A.2d 1245 (Pa. 1995) (court of common pleas sought to re coup from county attorney's fees incurred by court in de fending itself against application of county's antinepotism policy to court employees); Snyder v. Snyder , 620 A.2d 1133 (Pa. 1993) (dispute between court of common pleas and co unty over raise for court employees).

The Clerks -- Marca M. Graves, Antoinette R. Trueit t, Laura Segarra, Debra C. Napper, Marshell L. Napper, Sherry L. Reiff, and Dorothy R. Clemons -- worked i n Magisterial District 12-1-04, which is situated in and funded by Dauphin County, Pennsylvania.3 The Clerk s worked under District Justice Horace A. Lowery, who was appointed in August of 1992 to fulfill the remainin g term of a previous district justice.4 Approximately twenty- five clerks

___________________________________________________ ______________

because the potential infiltration of county politi cs would erode the integrity and impartiality of the judicial system. See County of Allegheny

, 534 A.2d at 765 ("[I]f court funding is permitted t o continue in the hands of local political authorities it is likely to prod uce nothing but suspicion or perception of bias and favoritism.").

3. Pennsylvania is divided into 60 judicial distric ts. 42 Pa. Cons. Stat. Ann. § 901 (West 1996). Dauphin County is judicial district #12. Id. Magisterial districts are drawn within a given judi cial district according to current population densities. Id. § 1502 (West 1981).

4. There is one district justice in each magisteria l district. See 42 Pa. Cons. Stat. Ann. § 1511 (West 1981). District Justi ces have jurisdiction over such matters as landlord-tenant disputes, misd emeanor criminal offenses and civil claims for less than $8,000.00. See id. § 1515 (West 1996).

4worked in Magisterial District 12-1-04 when Distric t Justice

Lowery came into office. Not one of the seven clerk s who are parties to this appeal was hired by Lowery.

Within a short time after Lowery's arrival, the Cle rks notified the office manager, Noime LeGrand, that Lo wery had been sexually harassing them. The Clerks notifi ed LeGrand pursuant to procedures set out in the sexua l harassment policy contained in the Dauphin County Personnel Manual. After an investigation, LeGrand
concluded that the Clerks' claims had merit and tha t Lowery's harassing conduct was pervasive.

On January 20, 1993, LeGrand, along with nine coworkers, including the Clerks, submitted a formal complaint to the Dauphin County Court Administrator alleging various incidents of sexual harassment by Lowery. In response, Dauphin County convened an investigati ve panel, which was chaired by the County's Chief Cler k. The County also made counseling services available to t he
Clerks.

Soon after the investigative panel was convened, Lo wery fired LeGrand and an assistant bookkeeper, Elista V ennie. Lowery notified the Dauphin County Commissioners of his decision to terminate the two employees. Dauphin Co unty, however, refused to effectuate the terminations and

, instead, assigned the two employees to other magist erial districts within the County. The County continued t o draw the salaries of LeGrand and Vennie from Lowery's bu dget. According to the County, it refused to effectuate L owery's termination of the employees because it was concern ed about its own potential liability if the employees later proved that Lowery's termination of the employees amounted to retaliatory discharge.

Lowery then took a number of other retaliatory acti ons, including firing two of the Clerks -- Marca Graves and Sherry Reiff. He also refused to approve vacation t ime and other requests for some of the other clerks.

Later, Lowery sought to fill the two positions vaca ted by LeGrand and Vennie. The County, however, refused to approve funding for the positions, maintaining that because LeGrand and Vennie -- the "terminated" employees -- were

5still on the payroll and because their paychecks we re

coming out of Lowery's budget, he was, in effect, a sking for funding for two additional positions.

In an effort to compel the County to terminate LeGr and and Vennie and provide the funding necessary to hir e two new employees, Lowery filed suit against the County in the Pennsylvania Commonwealth Court. The Commonwealth Court held that "Lowery has the authority to discha rge his employees without approval from the county commissioners, and the right to refill the position s thus vacated in his office." Lowery v. Sheaffer , No. 62 M.D. 1993, slip op. at 4 (Pa. Commw. May 13, 1993). In a ddition, the court found that the County was required by sta te law to provide the court with adequate funding to maint ain its operation. Id. The County then removed LeGrand and Vennie from the payroll.

LeGrand and Vennie filed suit in the Middle Distric t of Pennsylvania under Title VII and 42 U.S.C. § 1983 a gainst Lowery and Dauphin County.5 LeGrand and Vennie alle ged that the County's funding of their positions was su fficient to impose employer status on the County. Thus, acco rding to LeGrand and Vennie, the County could be held lia ble under both Title VII and § 1983 theories. LeGrand v

. Lowery , No. CV-93-1980, slip op. at 4 (M.D. Pa. May 3, 1994). The district court dismissed the complaint a gainst Dauphin County pursuant to Rule 12b(6), holding tha t because the judiciary was defined by state law as t he employer of judicial personnel, Dauphin County coul d not be considered the employer of LeGrand and Vennie. I d. at 8. We affirmed that decision by judgment order. LeG rand v. Lowery , 65 F.3d 162 (3d Cir. 1995) (unpublished table decision).

___________________________________________________ ______________

5. The Clerks and Dauphin County assert that the la wsuit filed by LeGrand and Vennie was brought under 42 U.S.C. § 19 83 only . The district court, however, stated that the suit was b rought under § 1983
and Title VII. See LeGrand v. Lowery , No. CV-93-1980, slip op. at 2 (M.D. Pa. May 3, 1994). Because the district court' s analysis in LeGrand clearly discussed Dauphin County's potential liabil ity in Title VII terms,
see id. at 3-9, we will assume that LeGrand and Vennie did assert a Title
VII claim.

6LeGrand's claim proceeded against Lowery and, at a

subsequent jury trial, Lowery was found individuall y liable to LeGrand under 42 U.S.C. § 1983.6 Immediately thereafter, Lowery filed for personal bankruptcy pr otection.

The Clerks filed this Title VII action in the Middl e District of Pennsylvania on September 26, 1995, against Lowe ry, the Pennsylvania Supreme Court and Dauphin County. The Clerks premised Title VII liability against the def endants on the following theory: that District Justice Lowery engaged in a pattern of quid pro quo sexual harassment, created a hostile working environment and retaliated against the Clerks for reporting his conduct; that Lowery was t he supervisor of the Clerks; that Dauphin County was the coemployer of the Clerks; and that the Pennsylvania S upreme Court was the co-employer of the Clerks. The Clerks also alleged that, through custom, the Pennsylvania Supr eme Court had delegated its statutorily granted governi ng authority over court employees to Dauphin County. I n sum, the Clerks claimed that all three defendants exerci sed some employer-type authority over them and, accordingly, all three defendants could be held liable for Lowery's harassing
conduct under Title VII.

Dauphin County filed a motion to dismiss on the gro und that under the Unified Judicial System, District Ju stice Lowery had the sole power to hire, fire and supervi se his employees. The district court agreed and dismissed the complaint against Dauphin County, finding the case indistinguishable from LeGrand , which had previously determined that the County could not be considered an employer of county court employees. See Graves v. L owery , No. CV-95-1624, slip op. at 2 (M.D. Pa. Apr. 8, 199 6) (citing LeGrand v. Lowery , No. CV-93-1980, slip op. at 8 (M.D. Pa. May 3, 1994)). The Clerks appeal from the district court's dismissal of their complaint against Dauphin County .7

___________________________________________________ ______________

6. LeGrand was awarded $30,000 in damages. Vennie a pparently dropped out of the case prior to the judgment.

7. The Pennsylvania Supreme Court settled with the Clerks prior to the entry of the district court's order dismissing the Clerks' complaint against Dauphin County. Dauphin County implies that , by settling, the Pennsylvania Supreme Court has accepted responsibil ity as the employer

7The district court had jurisdiction under 28 U.S.C.

§ 1331. We have appellate jurisdiction under 28 U.S .C. § 1291.

II.

Our review of a district court's decision to dismis s a complaint for failure to state a claim is plenary. Nami v.

Fauver , 82 F.3d 63, 65 (3d Cir. 1996). We must accept as true "the factual allegations in a complaint and al l
reasonable inferences that can be drawn therefrom." Holder v. City of Allentown , 987 F.2d 188, 194 (3d Cir. 1993) (quoting Markowitz v. Northeast Land Co. , 906 F.2d 100, 103 (3d Cir. 1990)). Thus, a court should not grant a motion to dismiss "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibso n , 355 U.S. 41, 45-46 (1957).

Dauphin County contends that the Clerks can assert no set of facts that would create an employer-employee relationship between the Clerks and Dauphin County. In

___________________________________________________ ______________

of the Clerks. As the Clerks note, however, the Pen nsylvania Supreme Court did not concede its employer status. The Cler ks state that the Pennsylvania Supreme Court asserted the following i n support of its
motion to dismiss:

"[T]he general authority of the Supreme Court over courts of common pleas, let alone an individual magisterial d istrict, is rarely if ever used, and the Unified Judicial System is no t yet a reality. In light of [the] stay of the Allegheny County decision, the current system remains in place, and the Supreme Court exer cises its supervisory powers only to do that which is reasona bly necessary to insure the integrity of the system and the efficien t administration of justice."

Appellants' Reply Brief at 2 (quoting Memorandum of the Supreme Court of Pennsylvania in Support of Motion to Dismi ss).

For purposes of this appeal, we will assume that th e Pennsylvania Supreme Court has not accepted responsibility as th e employer or coemployer of the Clerks. We note, however, that unde r the Clerks' theory of liability, the Pennsylvania Supreme Court's stat us as their employer would not preclude the co-employer liability of the County.

8Dauphin County's view, because the Clerks served at the discretion of District Justice Lowery, only he can properly be considered their employer. This employment relationship, the County claims, is defined by the Pennsylvania Constitution's requirement of a Unifie d Judicial System. See Pa. Const. Art. V, § 1.

The statutes which implement the Pennsylvania Constitution's requirement of a unified system defi ne the personal staff of judicial officers as "[p]rivate s ecretaries, law clerks and such other personnel as an individua l may be authorized by law to select and remove . . . ." 42 Pa. Cons. Stat. Ann. § 102 (West 1981). Individual coun ties are required to maintain a judicial account from which they must pay the salaries, fees and expenses of the cou rt systems within that county. See id. § 3541; Allegheny County v. Commonwealth , 534 A.2d 760 (Pa. 1987).

Dauphin County maintains that even though counties across Pennsylvania are required to pay the salarie s of court personnel, the personnel are "employed" by th e courts. To support this contention, the County reli es on a Pennsylvania Supreme Court decision, which held:

Since the court has the inherent right to hire, discharge and supervise, an employer-employee relationship exists by definition between the judge s and their appointees. The fact that those employees are paid by the county does not alter the court's emplo yer

status.

County of Lehigh v. Pennsylvania Labor Relations Bd

. , 489 A.2d 1325, 1327 (Pa. 1985) (citations omitted).

We do not dispute the proposition that the courts a re considered the employers of judicial personnel. In our view, however, this fact does not preclude the possibilit y that a county may share co-employer or joint employer stat us with the courts. While we have found no case which directly implicates this issue in the factual scenario we co nfront here (that is to say, which involves the narrow que stion of the division of responsibilities between counties a nd courts vis-a-vis judicial personnel), we draw some guidanc e from cases which have found joint employment status when two entities exercise significant control over the same

9employees. Cf. NLRB v. Browning-Ferris Indus. of Pe nn. Inc.

,

691 F.2d 1117, 1123 (3d Cir. 1982) (recognizing con cept of "joint employer" when separate entities share or co determine conditions of employment); Rivas v. Feder acion
de Asociaciones Pecuarias , 929 F.2d 814, 820-21 (1st Cir. 1991) (recognizing that when an entity exercises su fficient control over employees it may be considered a "join t employer"); G. Heileman Brewing Co., Inc. v. NLRB , 879 F.2d 1526, 1531 (7th Cir. 1989) (same). We emphasiz e that this case is unique, and we recognize that the case s we rely upon in connection with this question are factually distinguishable. But consistent with the legal prin ciple of joint employer status discussed in these cases, we conclude that although a court may have the "inherent right" to hire and fire employees -- even though those employees a re paid by a county -- it may also have the derivative right to delegate employer-type responsibilities to a county

.

Here, the Clerks allege exactly that -- i.e., that the County acted on authority delegated to it by the Pennsylvania Supreme Court. Specifically, the Clerk s allege that the County was integrally involved in their em ployment activities. For example, the Clerks were covered by the County's personnel policies.8 Additionally, every f ive years, the Clerks received pins for excellent service from the County. Thus, unlike the plaintiffs in LeGrand , the Clerks do not contend that Dauphin County's funding of the ir positions alone is sufficient to impose co-employer status on the County. See LeGrand v. Lowery , No. CV-93-1980, slip op. at 4 (M.D. Pa. May 3, 1994) ("[T]he plaint iffs contend that County funding of the plaintiffs' posi tions is indeed sufficient in itself to impose employer stat us on the County."). Rather, the Clerks argue that the County
assumed de facto responsibility over their employment.

The district court rejected the contentions of the Clerks, concluding that this case was indistinguishable fro m LeGrand , which, of course, arose from the same facts as those presented here.9 Because LeGrand formed the basis

___________________________________________________ ______________

8. These policies included holidays, vacation time, maternity leave, sick leave, etc. 9. As noted earlier, LeGrand was summarily affirmed by this Court. See LeGrand v. Lowery , 65 F.3d 162 (3d Cir. 1995) (unpublished table decision).

10of the district court's decision in this case, we w ill discuss

LeGrand in some detail.

In LeGrand , the district court concluded that county funding of the plaintiffs' positions was insufficie nt to impose employer status on Dauphin County. LeGrand , slip op. at 4. While conceding that a payor-payee relati onship is generally indicative of an employer-employee relati onship, the court found funding alone insufficient to impos e employer status on Dauphin County because the Count y was required by state law to fund positions for the courts. In other words, the court found that the County's l ack of authority over the personnel decisions of the court absolved the County of any liability as an employer. Id. at 6. The
LeGrand court did acknowledge, however, that the proper inquiry under Title VII for determining employer st atus looks to the nature of the relationship regardless of whether that party may or may not be technically described as an "employer." Id. at 7. The inquiry, as articulated by Sibley Memorial Hospital v. Wilson , 488 F.2d 1338, 1342 (D.C. Cir. 1973), looks to the level of control an organizatio n asserts over an individual's access to employment and the organization's power to deny such access. See also Amarnare v. Merrill Lynch, Pierce, Fenner & Smith I nc. , 611 F. Supp. 344, 348 (S.D.N.Y. 1984) ("When an employe r has the right to control the means and manner of an individual's performance . . . an employer-employee relationship is likely to exist."), aff'd , 770 F.2d 157 (2d Cir. 1985). The LeGrand court found that under the "control" test, the County's lack of authority to withhold fu nding for the employees' positions precluded the County from "controlling access" to the employees' employment opportunities. LeGrand , slip op. at 8.

Although we do not disagree with the district court 's analysis in LeGrand , in our view, LeGrand is distinguishable from this case. Unlike the plaintif fs in
LeGrand , the Clerks have alleged facts in their complaint, which, if proven, would allow them to show that Dau phin County, through its actions, was the de facto co-employer of the Clerks. As noted earlier, the Clerks do not contend that Dauphin County's funding of their positions is sufficient to impose employer status on the County. Rather,

11the Clerks claim that the County, through its fundi ng,

actions and policies, exercised the requisite contr ol over the daily employment activities of the Clerks to incur liability as a co-employer.

Further, and perhaps most important, the Clerks con tend that two of them were hired by County officials to work in Magisterial District 12-1-04.10 In our view, this a sserted fact alone should have precluded the district court from deciding the matter on a motion to dismiss.11

We also find it significant that the Clerks were co vered by the County's sexual harassment policy. Although Low ery could have legally ignored the policy, he did not. Cf. S ettelen v. County of Berks , No. 90-5992, 1991 WL 124572, at *2 (E.D. Pa. June 28, 1991) (county board of judges ex plicitly exempted court-appointed employees from county empl oyee handbook). It is not disputed that the Clerks under stood that they were covered by the policy. Indeed, the C lerks drafted a complaint pursuant to the policy and subm itted it to a County official. Based on these actions, we find it reasonable to infer that the Clerks expected the Co unty to have the authority to intervene in the situation. T his expectation was solidified when the County convened an investigative panel and provided the Clerks with co unseling services. Although employee expectations are not dispositive of employer status, they are relevant t o our analysis. See Armbruster v. Quinn , 711 F.2d 1332, 1337 (6th Cir. 1983) ("[T]he most important requirement is that there be sufficient indicia of an interrelationship . . . to justify the belief on the part of an aggrieved empl oyee that the [alleged co-employer] is jointly responsible fo r the acts of the immediate employer.").

___________________________________________________ ______________

10. Laura C. Segarra and Debra Napper allege that t hey were hired, respectively, by John Bottonare and Phillip Intrier i, both of whom work for Dauphin County.

11. The LeGrand court refrained from considering the implications of County input into the hiring process. See LeGrand , slip op. at 8 n.2 ("[W]e have no occasion to consider whether the Cou nty could be a Title VII employer in other circumstances when it does ha ve input into the hiring process.").

12In sum, the precise contours of an employment

relationship can only be established by a careful f actual inquiry. See Magnuson v. Peak Tech. Servs., Inc. , 808 F. Supp. 500, 510 (E.D. Va. 1992) (determining whether a defendant is a "joint employer" under Title VII req uires "[c]onsideration of all of the circumstances surrou nding the work relationship"), aff'd , 40 F.3d 1244 (4th Cir. 1994); see also NLRB v. Browning-Ferris Indus. of Penn., Inc. , 691 F.2d 1117, 1121 (3d Cir. 1982) (noting that under the NL RA, "the question of `joint employer status' is a factu al one"). Here, the Clerks alleged facts in their complaint, which, if true, could allow a jury to find that Dauphin Count y was the co-employer of the Clerks. Specifically, the Cl erks alleged that they were covered by the County's pers onnel policies, that they were told that they were County employees, that the County investigated their alleg ation of sexual harassment, that they were subject to termin ation and/or reinstatement by the County and that two of them were hired by the County.

By failing to take these allegations into account, and instead referring solely to the not-yet-implemented dictates of Pennsylvania law, the district court elevated fo rm over function. The court could have, of course, looked t o state law as one of many factors in making its determination. But, again, "a plaintiff's status as an employee un der Title VII can be determined only upon careful analysis of the myriad facts surrounding the employment relationshi p in question." Miller v. Advanced Studies , 635 F. Supp. 1196 (N.D. Ill. 1986). Indeed, such an analysis is essen tial when, as here, the nature of the employment relationship is quite
uncertain.

We decline to speculate as to whether the Clerks wi ll ultimately succeed in their claim against Dauphin C ounty.
See Scheuer v. Rhodes , 416 U.S. 232, 236 (1974) ("The issue is not whether a plaintiff will ultimately pr evail but
whether the claimant is entitled to offer evidence to support the claims."). We merely note that the employment relationship between the Clerks and the County was sufficiently ambiguous that the Clerks' claim again st the County should not have been dismissed at the pleadi ng stage. See DeFranks v. Court of Common Pleas , 68 F.E.P.

13Cases 1306, 1310 (W.D. Pa. 1995) (denying county's motion

to dismiss Title VII complaint filed by a court rep orter on the ground that the court reporter "must . . . be a fforded the opportunity to establish the facts relevant to her employment"). Indeed, the County's own actions indi cate that even it was unsure about its responsibilities to the Clerks. For example, the County's initial refusal t o acquiesce in Lowery's retaliation attempt against V ennie and LeGrand suggests that the County thought that i t may have owed a duty to those employees.12

Finally, we note that insulating the County from an y liability solely out of deference to state law woul d undermine the important policies underlying Title V II -- that is, to eradicate employment discrimination thr ough federal remedies and to ensure compensation for vic tims.
See Ford Motor Co. v. EEOC , 458 U.S. 219, 230 (1982); Horn v. Duke Homes, Div. of Windsor Mobile Homes, I nc. , 755 F.2d 599, 605 (7th Cir. 1985). In our view, if the Clerks can prove the allegations in their complaint and, consequently, prove that the County was their de fa cto coemployer, liability might very well lie with the Co unty as well as with their employer as defined by Pennsylva nia law.

For the foregoing reasons, we reverse and remand fo r further proceedings consistent with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

___________________________________________________ ______________

12. Dauphin County could be liable to the Clerks ev en though it did not directly engage in the harassing conduct. See Kinna lly v. Bell of Pennsylvania , 748 F. Supp. 1136 (E.D. Pa. 1990) ("The inaction of executive and management personnel may serve as a b asis for liability under Title VII even where these high-level employe es have played no direct role in the alleged discrimination."); Taylo r v. Jones , 653 F.2d 1193, 1199 (8th Cir. 1981) (noting that "toleration of a discriminatory atmosphere alone gives rise to a cause of action"). The Clerks allege that the County did nothing to protect them from Lowery' s harassing conduct and that the County, as their co-employer, had the duty to do so.

14