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. e du/thir dc ir c uit_1997/96Filed May 6, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 94-7462

SHERLYN KONSTANTOPOULOS and DIMOS KONSTANTOPOULOS, Appellants

v.

WESTVACO CORPORATION

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE (D.C. Civil No. 90-00146)

Argued: January 10, 1996

Before: SCIRICA, ALITO and WEIS, Circuit Judges

(Opinion Filed: May 6, 1997)

Diana S. Donaldson (Argued) Schnader, Harrison, Segal & Lewis 1600 Market Street, Suite 3600 Philadelphia, PA 19103

Counsel for Appellants

Donald E. Reid (Argued)
Andrea L. Rocanelli Morris, Nichols, Arsht & Tunnell
1201 North Market Street
Post Office Box 1347 Wilmington, DE 19899

Counsel for AppelleeOPINION OF THE COURT

ALITO, Circuit Judge :

Sherlyn Konstantopoulos, a former employee of Westv aco Corporation, and her husband, Dimos Konstantopoulos

, brought this action against Westvaco, asserting cla ims for
sexual harassment and retaliation under Title VII o f the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq ., as well
as claims under Delaware law. The district court he ld that the state-law claims were barred by the state Workm en's Compensation Act, and after a bench trial on the Ti tle VII claims, the court awarded some, but not all, of the relief that the plaintiffs sought. The plaintiffs then too k this appeal, but we affirm.

I.

A. The following facts are either undisputed or wer e properly found by the district court. Sherlyn Konstantopoulos (hereinafter "Konstantopoulos") beg an work at Westvaco in September 1987. 6/30/94 Dist. O p. at 3. After initially working as a "helper" in the "Fi nishing Department," she was promoted in April 1989 to the position of "helper" in the "Web" Department. Id. at 3-4. The Web Department contained a single printing pres s that used large rolls of paper spliced together to creat e one continuous "web" of paper. Id. at 4. Workers in the Web Department were divided into four "tours," and Konstantopoulos was initially assigned to "D" tour under the supervision of foreman Ron Hurley. Id. at 4-5. Mike Marshall and Ed Peterman were also assigned to this tour.
Id. at 5-6. At the time, Konstantopoulos was the only woman working in the Web Department, and she was gi ven little training. Id. at 6. The district court found that Westvaco "did not in any way prepare its employees - male
and female - to work in an environment where men we re working for the first time with women and where wom en were working for the first time with machinery." Id

. at 32.

During her time with this tour, "Ed Peterman, rathe r than provide substantial assistance to [Konstantopo ulos] on

2[certain] assignments . . . , gave nonresponsive, s arcastic

answers to [Konstantopoulos's] questions `quite a f ew times.' " For instance, Konstantopoulos testified t hat on one occasion when she asked for Peterman's help with a lid on a drum, he responded: "Aren't you liberated?" Id. at 8. Another time, when Konstantopoulos informed Peterma n that there was a malfunction on a particular machin e, Peterman told her to fix the machine herself even t hough
she had not been trained to do so. Id. Peterman also threatened on many occasions to send Konstantopoulo s back to the Finishing Department if she could not p erform in the Web Department. Id. Konstantopoulos's evaluations in late May reflected "below average ratings in sev eral categories of work, including knowledge, quantity a nd quality of work, and judgment and common sense." Id

. at
9.

During Konstantopoulos's assignment to "D" tour, Mi ke Marshall engaged on several occasions in sexually suggestive behavior directed toward her. 6/30/94 Di st. Ct. Op. at 7, 10-11. For instance, one day in April whe n she was working about 25 feet away from Marshall, with whom she had had no prior contact, "Marshall yelled: `Sh erri, look at this.' [Konstantopoulos] looked up, `saw white' and Marshall's `pants' flaps open'; [Konstantopoulos] t urned her head immediately and covered her eyes. [Konstantopo ulos] continued working and did not discuss this experien ce with anyone." Id. at 7. Konstantopoulos testified that in June 1989 Marshall made other similarly suggestive gestu res or remarks on three occasions. See id. at 11.

After these incidents, Konstantopoulos met with Fra nk Alcamo, the plant manager, and told him about some of the things that Marshall and Peterman had done. See 6/30/94 Dist. Ct. Op. at 11. Konstantopoulos then met twice with other Westvaco management representatives on June 2 1,
1989. See id. The first meeting was attended by the personnel manager and the supervisor of the Web Department, as well as the union president. See id. at 11- 12. Konstantopoulos reiterated the information that she had given to Alcamo and also complained that her fo reman, Ron Hurley, was not training her. Id. Westvaco management then met with Marshall and Peterman, who

3denied the charges. See id. at 12. "Westvaco's `EEOC policy'

was read to both Marshall and Peterman, along with the admonition that `increasingly severe disciplinary m easures' would be taken if any further sexual harassment complaints were made against either of them." Id. Later the same day, Konstantopoulos met again with Westvaco management and agreed to be transferred to a new to ur commencing the next day, June 22, 1989. See id. at 12-13.

The foreman of Konstantopoulos's new tour was Larry Cahall, who "was not informed of the circumstances underlying [Konstantopoulos's] transfer." 6/30/94 D ist. Ct. Op. at 3. Konstantopoulos experienced harassment du ring
this tour as well. See id. at 14-16. One day in July 1989, she found a note that said: "Sherry doesn't need he lp, she needs a babysitter." Id. at 14. On approximately July 19, her locker (and three others) were damaged, and sho rtly
thereafter she found trash in her locker. Id. at 14. On July 21, she filed a complaint with the Equal Employment Opportunity Commission, charging that her locker ha d been damaged in retaliation for her complaints agai nst
Marshall and Peterman. See id. at 20. On July 24, she reported to Cahall that her locker had been damaged . Id. at 14. Cahall then advised his supervisor, who issued a warning that anyone found guilty of vandalism would be disciplined. Id.

In August, someone wrote a sexually insulting remar k concerning Konstantopoulos on a clipboard that was kept near a machine in the Web Department. See 6/30/94 Dist. Ct. Op. at 14-15. Konstantopoulos reported this inc ident to Cahall, who said that it would be difficult to iden tify the perpetrator and suggested that Konstantopoulos eras e the writing or throw the clipboard away. Id. at 15.

According to Konstantopoulos, during the period fro m July 23 to August 28, 1989, a co-worker, Greg Games

, made several sexually insulting or threatening rema rks to
her. See 6/30/94 Dist. Ct. Op. at 15. On one occasion, she said, he grabbed her by the neck and said that he w ould
like to kill her. Id.

"[Konstantopoulos] did not report any of these inci dents to anyone at Westvaco at the time they occurred." I d. at 15.

4"[She] testified, however, that she was`upset,' `af raid,' `hurt,' `humiliated,' and `diminished' by the vario us incidents." Id. at 15-16. At the end of every tour, Konstantopoulos was evaluated by foreman Cahall, an d these evaluations were frequently below average or unsatisfactory. See id. at 16.

On September 2, 1989, Konstantopoulos gave Cahall a note from her doctor, Costas A. Terris, advising th at she should be assigned to a "light duty job" for three to four weeks due to "job and home-related stress." 6/30/94 Dist. Ct. Op. at 16. Westvaco asked Konstantopoulos for additional information concerning the type of light -duty work that she could perform, but she instead suppli ed a second note from Dr. Terris, dated September 14, 19 89,
which stated that she had been under his care since August 21, 1989, for the treatment of "severe work induced stress"; that "[t]here appear[ed] to be some improv ement";
but that she should "remain off work for another 3- 4
weeks." Id. at 16-17. On September 11, 1989, Konstantopoulos supplemented her prior EEOC complai nt by reporting, among other things, that a "derogator y sexual remark" had been written about her on a clipboard a nd that foreman Cahall had not taken any action in res ponse. Id. at 20. She stated that she had suffere d"anxiety a nd stress resulting in los[t] time from work and exten sive
medical bills." Id.

Konstantopoulos remained out of work until October 30, 1989, when she "returned to work, able and willing. " Id. at 17. However, she elected to take a layoff, and she did not
return to work thereafter until she was recalled on April 16,
1990. Id. On December 21, 1989, while Konstantopolous was laid off, the EEOC issued two right-to-sue lett ers, and on March 27, 1990, she commenced this action byfili ng a complaint against Westvaco. See id. at 21. Her complaint
asserted Title VII claims for sexual harassment and retaliation, as well as a state-law claim for torti ous infliction of emotional distress.

When Konstantopoulos returned to work on April 16, 1990, she was again assigned to the Web Department, with Ron Hurley as her foreman. 6/30/94 Dist. Ct. Op. at 17. During her first tour, she broke a piece of machine ry and

5was publicly chastised by Hurley. Id. at 17. During her next

tour (April 23 and 24), she was temporarily transfe rred to the Finishing Department because there was not suff icient work in the Web Department. Id. at 18. None of her coworkers harassed her during this two-day period. Id

.

On April 25, Konstantopoulos was assigned as a help er in the Web Department on Larry Cahall's tour. 6/30/ 94 Dist. Ct. Op. at 18. Konstantopoulos informed Cahal l of her apprehension about the assignment, but Cahall was required by the collective bargaining agreement to transfer her to the Web Department "because she was the pers on in the Finishing Department with the most seniority wh o had worked in the Web Department previously." Id. Cahall, however, assured Konstantopoulos that he would be available in his office if she needed him, and he a lso warned the crew that he would not tolerate any hara ssment
of her. Id. In addition, Cahall made frequent visits to the Web Department that day, "entering through a differ ent door each time, and he spent more time than he norm ally
would in the area." Id.

Konstantopoulos made no complaints to Cahall that d ay, but she testified at trial concerning two incidents involving
co-workers. See id. at 18-19. She stated that Mike Marshall and Ed Peterman "squinted their eyes . . . and shoo k their fist[s]" at her and that another co-worker threw aw ay her
lunch. Id. The district court stated that it was not clear from the record whether Konstantopoulos's name was on her lunch bag and that the co-worker who threw away the bag stated that he had done so accidentally. See id

. at 19.

After completing her shift on April 25, Konstantopo ulos left without speaking to anyone from Westvaco. Id. at 19. The next day, she gave Cahall the following note:

To whom in may concern:

Ms. Konstantopoulos has been under my care for the past several months for the treatment of severe wor k related anxiety. She has now been referred to a loc al psychiatrist to continue therapy and has also been advised to stay off work for an additional 6-8 week s.

Sincerely,

Costas A. Terris, M.D.

6Id. Cahall told Konstantopoulos to go home and to call the

personnel manager the next day, and Konstantopoulos responded: "Am I fired now?" Id. at 20. She never returned to work at Westvaco. At the time of trial, she had not worked anywhere else and had not looked for work. I d. at
20.

B. As eventually amended, the complaint in this cas e contained six counts. Count I alleged that Westvaco had violated § 703(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), by "creating a hostile and intimidating work environment." App. at 33. Count I I claimed that Westvaco had violated § 703(a) by enga ging in various retaliatory actions against Konstantopolous as a result of the initial charge of sexual harassment t hat she filed with the EEOC in July 1989. Count III asserte d a
claim under Delaware law for intentional infliction of emotional distress, and Count V asserted a claim un der Delaware law for sexual assault and battery. This c laim was based on, among other things, the incident in which Greg Games grabbed Konstantopolous by the neck and state d that he would like to kill her. The remaining count , Count IV, asserted a claim under Delaware law by Konstantopolous's husband, Dimos Konstantopolous, f or loss of consortium.

In June 1993, the district court granted summary judgment in favor of Westvaco with respect to the c ounts of the complaint (Counts III, IV, and V) that asserted claims
under state law. The court stated that "the facts o f record clearly indicate that the alleged incidents arose o ut of [Konstantopoulos's] work relationship with the tort feasoremployees as opposed to any affair or personal rela tionship originating outside the workplace," and the court t herefore
held that the tort claims based on these incidents were barred by the Delaware Workmen's Compensation Act. 6/4/94 Dist. Ct. Op. at 11. For similar reasons, th e court denied the plaintiffs' motion to amend the complain t to add a claim of negligent infliction of emotional distre ss. See id. at 18. In addition, since Dimos Konstantopoulos's c laim in Count IV was derivative of Counts III and V, the co urt granted summary judgment on Count IV as well. See i d. at
12 n.4.

7The remaining Title VII claims were tried without a jury in August 1993. After the trial, the court found th at Westvaco had violated Title VII by subjecting Konstantopolous to a discriminatorily hostile or ab usive work environment during the period from April 15 th rough August 27, 1989. See 6/30/94 Dist. Ct. Op. at 31-35. The court observed that while "one can find examples of conduct more severe than that evidenced of record," "[Konstantopolous's] testimony remains essentially undisputed on the record and evidences some physica lly threatening and/or humiliating discriminatory condu ct." Id.
at 33-34. The court further concluded that Konstantopolous's "work performance was directly re lated to the discriminatory conduct alleged, i.e., the fa ilure to
train." Id. at 34. The court then stated:

Having reviewed "all the circumstances," and althou gh the circumstances at bar are not so egregious as in other cases, the Court concludes that a reasonable
woman would find the conduct evidenced of record to be sufficiently offensive as to alter the condition s of her employment.

Id.

The district court further found that Westvaco "kne w or should have known of the harassment and failed to t ake proper remedial action" during the period in questi on. 6/30/94 Dist. Ct. Op. at 34. The court noted that, although Konstantopolous was transferred to a new tour after the meetings on June 21, 1989, Westvaco "did nothing to ensure that [her] new work environment would be any different from the one she was leaving." Id. at 35. The court
continued:

Plaintiff's new foreman, Larry Cahall, was not info rmed of plaintiff's complaints; he, therefore, did not f ormally address the matter of additional training for plain tiff on the machinery and never addressed at all any additional training for the crew regarding defendan t's policy against sexual harassment. It is clear from the record that defendant generally failed to provide i ts employees with the information and mechanisms necessary to successful effectuate its policies aga inst

8discrimination. It is clear from the record as well that

defendants specifically failed to remedy the hostil e work environment encountered by plaintiff during th e period April 15 through August 27, 1989.

Id. As relief for this period, the court awarded back pay but declined to award front pay because the court found that Konstantopolous had failed to mitigate damages. See id. at
37-38.

The district court "decline[d] . . . to extend the hostile work environment characterization past August 1989. " 6/30/94 Dist. Ct. Op. at 35. The court noted that Konstantopoulos was " `ready, willing and able' to return to work (without any further discussions with defendan t regarding the work environment) by October 1989 and continued to so affirm through April 25, 1990." Id. The court therefore concluded that "the incidents alleg ed by plaintiff in April 1990 [were] sufficiently removed in time to be considered independently from those occurring in 1989."
Id. Moreover, the court wrote that those incidents, "considered independently, were neither severe nor pervasive enough to have created a hostile work
environment." Id. at 35-36. Finally, the court found, based in part on Konstantopolous's "apparent attitude in April 1990," that her "inability to work in April 1990 an d thereafter [was] not necessarily related to[Westvac o's]
conduct." Id. at 36. The court also concluded that the conditions of Konstantopolous's employment in April 1990 were not so intolerable that a reasonable person in her position would have resigned, and the court therefo re held that she had not been constructively discharged. Se e id. at
36-37.

Sherlyn and Dimos Konstantopolous then took this appeal. After briefing and oral argument, we certif ied two questions of state law to the Supreme Court of Dela ware. Certification was accepted, and the Supreme Court o f Delaware provided a response that we discuss in par t III of this opinion.

II.

We turn first, however, to Konstantopoulos's Title VII
arguments.

9A. Konstantopolous first contends that the district court improperly evaluated the events that occurred durin g her second period of employment in isolation and that i nstead
the court should have viewed them as a continuation of the harassment that had taken place seven months earlie r. We hold, however, that the district court applied the correct legal standard and that its conclusion about the du ration of
the hostile or abusive environment to which Konstantopoulos was subjected is supported by the f acts.

"[A] plaintiff may establish a violation of Title V II by proving that discrimination based on sex has create d a
hostile or abusive work environment." Meritor Sav. Bank,
FSB v. Vinson , 477 U.S. 57, 66 (1986). See also Harris v. Forklift Systems, Inc. , 510 U.S. 17, 21 (1993). "For sexual harassment to be actionable, it must be sufficientl y severe or pervasive `to alter the conditions of [the victi m's] employment and create an abusive working environmen t.' "
Meritor Sav. Bank , 477 U.S. at 67 (citation omitted). The plaintiff must subjectively perceive the environmen t to be hostile or abusive, and conditions must be such tha t a reasonable person would have the same perception. H arris

, 510 U.S. at 21.

The Supreme Court has stated that a determination
whether an environment is hostile or abusive can be made "only by looking at all the circumstances." Harris , 510 U.S.
at 23. See also Meritor Sav. Bank , 477 U.S. at 68. This court has similarly stressed that the "totality of the circumstances" must be examined, Andrews v. City of Philadelphia , 895 F.2d 1469, 1486 (3d Cir. 1990), and has "precluded an individualized, incident-by-incident approach" to making such a determination. West v. Philadelphia Elec. Co. , 45 F.3d 744, 756 (3d Cir. 1995).

In this case, the district court expressly stated t hat it had examined the totality of the circumstances. See Dist. Op. at 30, 34. Konstantopoulos argues, however, that the c ourt merely "paid lip service" to this principle and "th en treated the incident of April 19, 1990 in isolation." Appel lants' Br. at 22. In making this argument, Konstantopoulos foc uses on the court's statement that the events of April 1 990 were " `sufficiently removed in time to be considered independently from those occurring in 1989 and,

10considered independently , were neither severe nor pervasive

enough to have created a hostile work environment.' " Appellants' Br. at 19 (quoting Dist. Op. at 35-36) (emphasis added in appellants' brief). We do not believe that Konstantopoulos has fairly interpreted the district court's opinion. A fairer interpretation, in our view, is t hat the
district court found that the effects of the harass ment that occurred from April through August 1989 had dissipa ted by the time that Konstantopolous returned to work in A pril 1990; that, therefore, without any new incidents of harassment, there would be no basis for concluding that the working environment in April 1990 was hostile o r abusive; and that the few incidents that occurred w hen Konstantopolous returned were not sufficiently nume rous or severe to warrant the conclusion that the workin g environment remained hostile or abusive. We see no error in this mode of analysis.

Moreover, we conclude, based on our own examination of the record, that Konstantopolous was not subjected to a hostile or abusive working environment when she ret urned to work in April 1990.1 Like the district court, we find several factors that support this conclusion. First , the passage of nearly seven months between the end of Konstantopolous's first period of employment and th e

___________________________________________________ ______________

1. The parties disagree regarding the standard of a ppellate review that should be applied to the district court's conclusio n that Konstantopoulos was not subjected to a hostile or abusive working e nvironment in April 1990. Konstantopoulos contends that the standard of review is plenary (Appellant's Br. at 1) while Westvaco argues that t he appropriate standard is clear error. Appellee's Br. at 1. Neith er party, however, has briefed this issue, on which the courts of appeals are divided. Compare Crawford v. Medina General Hosp. , 96 F.3d 830, 835-36 (6th Cir. 1996), (question of fact reviewed for clear error), and Am irmokri v. Baltimore Gas
& Electric Co. , 60 F.3d 1126, 1130 (4th Cir. 1995) (same), with F uller v. City of Oakland , 47 F.3d 1522, 1527 (9th Cir. 1995) (mixed questio n subject to de novo review). The Supreme Court "has long noted the difficulty of distinguishing between legal and fact ual issues." Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384, 401-02 (1990). See also , e.g ., Pullman-Standard v. Swint , 456 U.S. 273, 288 (1982). Here, we find it unnecessary to decide which standard of review to a pply because under either standard we see no ground for reversing the district court's
decision.

11beginning of the second is significant. This hiatus provided

an opportunity for the lingering effects of the pri or incidents to dissipate. Second, as the district court noted, after leaving work for medical reasons in August 1989, Konstantopolous herself stated that she was ready, willing, and able to return to work by October 1989 "and con tinued to so affirm through April 25, 1990," when she even tually returned. 6/30/94 Dist. Ct. Op. at 35. Thus, Konstantopolous's conduct suggests that, in her min d, the effects of the prior incidents had dissipated well before she actually returned to work. Third, the nature of the incidents that took place when Konstantopolous returned is important. Although we can well understand why Konstantopolous would be troubled by the mute gestu res made by Marshall and Peterman -- squinting their ey es and shaking their fists -- this incident cannot in itself be characterized as particularly severe. Moreover, the only other incident cited by Konstantopoulos -- the thro wing away of her lunch -- seems minor, since it is not c lear that Konstantopolous's name was on the bag, and the offe nding co-worker stated that he had thrown it away acciden tally.
Id. at 19. Fourth, it is apparent that Westvaco sought to prevent any harassment of Konstantopoulos when she returned to work and provided procedures by which a ny improper conduct by co-workers could have been reme died. As previously noted, foreman Larry Cahall warned th e crew that he would not tolerate any harassment of Konstantopoulos and assured her that he would be
available in his office if she needed him. He also made frequent, unannounced visits to the Web Department and "spent more time than he normally would in the area ." 6/30/94 Dist. Ct. Op. at 18. Konstantopoulos, howev er, made no complaints to Cahall either during or after her shift, and when she returned to work the next day w ith a physician's note stating that she had been advised to stay off work for six to eight weeks, she commented:"Am I fired?" All of these factors seem to us to suggest that Konstantopoulos was not subjected to hostile or abu sive environment when she returned to work in April 1990

.

To be sure, there are factors that point in the opp osite direction. One of these is the severity of the cond uct of her co-workers during the period from April through Aug ust

121989. Although the district court observed that "on e can

find examples of conduct more severe than that evid enced of record," the court added that there was "essenti ally undisputed" evidence that Konstantopoulos was subje cted to "some physically threatening and/or humiliating discriminatory conduct." Another similar factor is Konstantopoulos's assignment to work under
circumstances that ensured that she would encounter the co-workers responsible for the prior harassment.

We do not, however, agree with Konstantopolous that her argument is substantially supported by her assignme nt to work under foremen Hurley and Cahall. We recognize that the prior incidents of abuse by co-workers occurred while Konstantopoulos was working under the supervision o f these men, but Konstantopoulos did not report any o f the most serious incidents to anyone from Westvaco at t he time when they occurred. See 6/30/94 Dist. Ct. Op. at 7, 10. Moreover, when Konstantopoulos briefly worked under Hurley's supervision in April 1990, no alleged acts of sexual harassment occurred, and when she was again assigne d to work under Cahall's supervision, he took pains to p revent the recurrence of such abuse. Viewing all of the ev idence bearing on Konstantopoulos's working environment in April 1990, including all of the events that took place d uring her prior period of employment, we agree with the distr ict court that she was not subjected to a hostile working environment in April 1990.

Konstantopoulos argues that requiring her "to [w]or k [w]ith [t]he [v]ery [e]mployees [w]ho [h]ad [s]exua lly [h]arassed [h]er [s]even [m]onths [b]efore [c]onsti tuted [a]dditional [s]exual [h]arassment." Appellants' Br . at 23. To the extent that Konstantopoulos is simply arguing t hat her assignment in April 1990 to work in proximity to Ma rshall
and Peterman is a factor that must be considered in determining whether she was subjected to a hostile or abusive working environment at that time, we readil y agree. As we believe we have already made clear, we view t his as a significant factor weighing in her favor, but aft er examining the totality of the circumstances, we con clude that her reassignment to the Web Department and her
encounter with Marshall and Peterman are insufficie nt to

13justify the conclusion that she was subjected to a hostile

working environment when she returned to work.

To the extent that Konstantopoulos goes further and suggests that requiring her to work in proximity to Marshall and Peterman constituted illegal sexual harassment per se , we disagree. As prior decisions of the Supreme Cour t and our court make clear, the proper test is whether, u nder all the circumstances, a reasonable person would find t he working environment to be hostile or abusive. See H arris

, 510 U.S. at 23; West , 45 F.3d at 756; Andrews , 895 F.2d at 1486. We therefore see no justification for adop ting the

per se rule that Konstantopoulos seems to advocate.

Nor do we believe that Cortes v. Maxus Exploration Co.

, 977 F.2d 195 (5th Cir. 1992), or Ellison v. Brady , 924 F.2d 872 (9th Cir. 1991), on which Konstantopolous relie s, supports such a per se rule. In Cortes , an employee, Cortes, was subjected to severe and persistent sexual haras sment by her immediate supervisor, Acero. See 977 F.2d at 197- 98. Although Cortes complained about this harassmen t to her employer's human resources manager, he did noth ing to rectify the situation. Id. Eventually, Cortes was transferred to another department, but Acero contin ued to
harass her. Id. Cortes again complained to the human resources manager, but he dismissed her complaints. Id. Eventually, Cortes was informed that she would have to work under Acero's immediate supervision or resign. Id. Although she told the human resources manager that she was afraid to work for Acero, the human resources m anager replied that there was nothing that he could do. Id

.

Faced with this record, the Fifth Circuit sustained the district court's finding that the employer, Maxus, had subjected Cortes to a hostile or abusive environmen t. The

court wrote:

Even in light of the strong evidence that Acero had sexually harassed Cortes when she was under his supervision and that when given the opportunity, he
had continued to do so even after she was transferr ed out of his department, Maxus transferred Cortes to this sexually abusive environment. When Cortes expressed her fears about accepting the transfer, Maxus refus ed

14to take any remedial measures to protect her. . . . We

find no clear error in the district court's conclus ion
that these acts amounted to sexual harassment withi n the meaning of Title VII.

Id. at 199.

It is clear to us that Cortes does not stand for the proposition that it is always illegal for an employ er to require a prior victim of sexual harassment to retu rn to work in the company of co-workers responsible for t he prior harassment. Rather, Cortes , in our view, merely held that the employer in that case violated Title VII by req uiring the employee to work in an environment where sexual harassment seemed almost certain and by refusing to take any remedial measures.

Ellison provides somewhat stronger support for Konstantopolous's argument, but we do not interpret it as adopting a per se rule. In that case, a male IRS agent (Gray) persistently expressed a romantic interest in a fem ale agent (Ellison), who did not reciprocate his sentiments a nd found his conduct to be "weird[ ]," "crazy" and "frighten [ing]."
Ellison , 924 F.2d at 874. After Ellison complained to thei r supervisor, Gray was temporarily transferred from t he San Mateo, California, office to the San Francisco offi ce, but he was permitted to return to San Mateo six months lat er. Id. at 874. The Ninth Circuit held that "Gray's conduct , as alleged by Ellison, was sufficiently severe or perv asive to alter the conditions of Ellison's employment and cr eate an abusive working environment." Id. at 876. Turning to the question whether the Treasury Department had taken
sufficient remedial action to shield it from liabil ity under Title VII, the Ninth Circuit concluded that it was unable to
determine based on "the scant record" before it "wh ether a reasonable woman could conclude that Gray's mere presence at San Mateo six months after the alleged
harassment would create an abusive environment." Id

. at
883. The court stated that it did not "know how oft en Ellison and Gray would have to interact at San Mate o" and added that "the facts concerning the government's d ecision to return Gray to San Mateo" warranted further exploration. Id.

15We do not interpret Ellison as adopting a per se rule.

Rather, the court merely held that, based on the fa cts in the record, it was unable to determine whether the employer's decision to permit the harasser to retur n to the
same office as the victim created an environment th at violated Title VII. We recognize that the Ellison court stated that it believe that "in some cases the mere presen ce of an employee who has engaged in particularly severe or pervasive harassment can create a hostile working environment." 924 F.2d at 883. Even this statement, however, does not endorse a blanket rule. Rather, i t merely states that in some cases (i.e., those involving "p articularly severe or pervasive harassment") the mere presence of the harasser "can" be enough to create a hostile enviro nment.

In sum, having considered the totality of the circumstances, we agree with the district court tha t, although Konstantopolous was subjected to a hostile and abusive working environment during her first period of employment with Westvaco, she was not subjected to such an environment during her brief second period of employment.

B. In light of our conclusion that no hostile work environment existed at the time that Konstantopoulo s voluntarily left Westvaco's employ, Konstantopoulos cannot show the necessary predicate to maintain a construc tive discharge claim, specifically, that there were "con ditions of discrimination" so intolerable that a reasonable pe rson would have resigned.2 Goss v. Exxon Office Sys. Co. , 747

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2. Even if we had not reached this conclusion, we w ould reject Konstantopoulos's argument that the district court erroneously rejected her constructive discharge claim "based on what it apparently believed to be additional requirements specified in Clowes v. A llegheny Valley Hosp.

, 991 F.2d 1159, cert. denied , 114 S.Ct. 441 (1993)." Appellants' Br. at 26. After properly applying the Goss standard for constructive discharge, 6/30/94 Dist. Ct. Op. at 36-37, the district court observed that there are a list of factors that are "commonly cited by emplo yees who claim to have been constructively discharged." Id. Contrary to Konstantopoulos's assertion, the district court did not "procee[d] im permissibly to impose those factors as additional requirements for a cons tructive discharge claim." Appellants' Br. at 28. The court merely use d these factors as an illustrative guide in exactly the same manner as th is court used those

16F.2d 885, 888 (3d Cir. 1984). The district court th erefore

properly rejected her constructive discharge claim.

C. Konstantopoulos next contends that the district court abused its discretion in excluding the testim ony of her expert psychological witness, Jay Ann Jemail, P h.D., based on trial counsel's failure to comply with rel evant pretrial discovery orders. "The trial court's exclu sion of testimony because of the failure of counsel to adhe re to a pretrial order will not be disturbed on appeal abse nt a clear abuse of discretion." Semper v. Santos , 845 F.2d 1233, 1238 (3d Cr. 1988). In determining whether a distri ct court abused its discretion, we consider:

(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure th e prejudice, (3) the extent to which waiver of the ru le against calling unlisted witnesses would disrupt th e orderly and efficient trial of the case or other ca ses in the court, and (4) bad faith or wilfulness in faili ng to comply with the district court's order.

Meyers v. Pennypack Woods Home Ownership Ass'n , 559 F.2d 894, 904-905 (3d Cir. 1977). See also Beissel v. Pittsburgh and Lake Erie R.R. Co. , 801 F.2d 143, 150 (3d Cir. 1986) cert. denied , 479 U.S. 1088 (1987). We have also stated that "the importance of the excluded testimo ny" should be considered. Meyers , 559 F.2d at 904. "[T]he
exclusion of critical evidence is an `extreme' sanc tion, not normally to be imposed absent a showing of wilful deception or `flagrant disregard' of a court order by the proponent of the evidence." Id. at 905 (quoting Dudley v. South Jersey Metal, Inc. , 555 F.2d 96, 99 (3d Cir. 1977).

Applying these standards, we hold that the district court properly exercised its discretion in excluding Dr. Jemail's

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factors in Clowes , determining that an absence of strong evidence fo r any of the factors supported a finding that the pla intiff was not constructively discharged. Compare Clowes , 991 F.2d at 1161 and 6/30/94 Dist. Ct. Op. at 36-37. The district court therefore used the proper legal standard.

17testimony. Two factors strongly support the distric t court's

decision. First, this is clearly a case that involv es a " `flagrant disregard' of a court order by the prop onent of the evidence." Meyers , 559 F.2d at 905. As noted, the initial complaint in this case was filed in March 1990, and the complaint was finally amended in March 1991. The cu toff date for expert witness discovery was extended at l east three times before a final cutoff date of January 1 992 was set. Nevertheless, Dr. Jemail did not see Konstanto poulos until January 1993, one year after the cutoff date, and plaintiffs' trial counsel did not advise opposing c ounsel that Dr. Jemail would be called as an expert witness unt il a pretrial conference on July 29, 1993, long after Dr . Jemail was first consulted and approximately three weeks p rior to the scheduled trial date. Even then, plaintiffs' tr ial counsel did not fully comply with his discovery obligations relating to Dr. Jemail's testimony, and indeed he had not fu lly met those obligations when the district court held, on August 13, 1993, that Dr. Jemail's testimony would be excl uded. Based on these facts alone, we are satisfied that t his case qualifies as one involving flagrant disregard of th e pretrial
order.3

Second, we are satisfied that Westvaco was prejudic ed. The district court so found, see 8/13/92 Order at ¶ 12, and we accept that finding. As noted, plaintiffs' trial counsel did
not advise Westvaco that he intended to call Dr. Je mail until approximately three weeks before the schedule d trial date. Another week elapsed before plaintiffs' trial counsel revealed the substance of Dr. Jemail's expected tes timony.
See App. 53-56. Counsel listed only two dates -- on Au gust 13 after 3 p.m. and August 17, after 4 p.m. -- when Dr. Jemail would be available for deposition, and no re port written by Dr. Jemail was ever turned over because,

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3. Because we find that this case involves a "flagr ant" violation of pretrial order, we do not reach the question whether it also involved "willful deception." See Meyers , 559 F.2d at 905 (evidence should be excluded only in cases involving flagrant disregard of a cou rt order or willful deception). As to the question of willfulness in th is case, see footnote 7,
infra

.

18counsel stated, Dr. Jemail did not prepare one. Und er these

circumstances, the finding of prejudice was justifi ed.4

The district court did not make findings with respe ct to several of the other factors mentioned in Meyers -- the importance of Dr. Jemail's testimony, trial counsel 's good or bad faith, Westvaco's ability to cure the prejudice , and the extent to which waiver of the rule against calling unlisted witnesses would have disrupted the orderly and effi cient trial of this or other cases.5 However, it is appar ent that none of these factors weighs heavily against the ex clusion of Dr. Jemail's testimony, and therefore a remand f or further findings is not necessary. With respect to the importance of Dr. Jemail's expected testimony, it a ppears that some, but not all, of her testimony was covere d by the testimony of another plaintiffs' witness, Dr. Anton io Sacre,

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4. We are likewise satisfied that Westvaco was surp rised when, 18 months after the extended discovery cutoff and appr oximately three weeks before trial, plaintiffs' trial counsel infor mally notified it during a pretrial conference that he intended to call a prev iously undisclosed expert witness. Konstantopoulos argues:

Westvaco could not have been genuinely surprised by the addition of Dr. Jemail as a witness. Not only did Westvaco k now that Ms. Konstantopoulos' psychological condition and the ca use of that condition were hotly contested issues in the case, but had also known since January 1993 that Ms. Konstantopoulos w as seeing a new psychologist.

Appellants' Br. at 41. This is surely a strange arg ument. Konstantopoulos would have us believe that, prior t o July 29, 1993, her
trial counsel did not know that he would seek to ca ll Dr. Jemail as an expert witness and thus should be excused for faili ng to disclose that intention any sooner, id. at 37-38, but at the same time Konstantopoulos argues that Westvaco should have guessed well befor e July 29, 1993,
that her trial counsel would have to and would atte mpt to add a previously undisclosed psychological expert witness . Konstantopoulos cannot have it both ways.

5. A trial court's failure to state on the record i ts reason(s) for excluding experts is not necessarily an abuse of discretion. See Sowell v. Butcher & Singer, Inc. , 926 F.2d 289, 302 (3d Cir. 1991). When a trial co urt does not state its reasons for exclusion, the reviewing court may apply the Meyers factors to the trial court's decision to determine if the court
abused its discretion. Beissel , 801 F.2d at 150-51.

19the psychiatrist who treated Konstantopoulos.6 We d o not

regard this factor as particularly favorable to eit her side in
this case.

We are likewise convinced that the issue of trial c ounsel's good or bad faith cannot weigh significantly in Konstantopoulos's favor.7

The parties dispute whether Konstantopoulos's trial counsel promptly notified Westvaco after making the final decision to call Dr. Jemail as an expert witness. W estvaco contends that Konstantopoulos's trial counsel made that decision months before he eventually notified Westv aco at the July 29, 1993, pretrial conference.8 By contra st,

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6. Konstantopoulos maintains that Dr. Jemail would have testified to "(1) the nature of [plaintiff's] emotional problems; (2) the cause of those problems (i.e. , the sexual harassment); (3) [plaintiff's] therape utic needs; (4) the results of the MMPI-2; and (5) the question able validity of the testing done by [defendant's experts]." Appellants' Br. at 33. However, the first three subjects were covered in the testim ony of Dr. Sacre. The only subject not covered by plaintiff's experts wer e the results and validity of the MMPI-2 test. Konstantopoulos sought to impeach the credibility of defendant's expert, Dr. Raskin, by c asting doubt on the applicability and reliability of the MMPI-2. Dr. Ra skin did not refer to the test by name on direct examination, but indicated t hat some of his conclusions were based on psychological testing. 7. The district court made no finding regarding tri al counsel's good or bad faith. On appeal, Konstantopoulos notes that We stvaco urged the
district court to find that her trial counsel acted in bad faith but that the district court failed to do so. She then suggests t hat the district court rejected the proposition that her trial counsel was guilty of bad faith.
See , e.g. , Reply Br. at 12. We disagree with this characteri zation of the district court's order excluding Dr. Jemail's testi mony. Making no finding on the question of bad faith (which is what the dis trict court did) is quite different from finding that there was no bad faith.

8. Relying on time sheets submitted by Konstantopou los's trial counsel in connection with his application for attorney's f ees, Westvaco contends that trial counsel prepared a subpoena for Dr. Jema il and paid her bill in February 1993. If it were necessary for purposes of this appeal to
determine when trial counsel decided to call Dr. Je mail as an expert witness, we would remand this case to the district court for an exploration of the significance of these facially t roubling records, which
were not called to the attention of the district co urt in relation to the question of trial counsel's alleged bad faith. Howe ver, because we do not think that it is necessary to make this determinati on, we do not find a
remand to be essential.

20Konstantopoulos argues that her trial attorney did not

make that final decision until shortly before the p retrial conference. However, Konstantopoulos does not dispu te the fact that trial counsel had been preparing for the possibility of calling Dr. Jemail as a witness for some months. 9 Yet despite this, despite the fact that the cutoff for expert discovery had passed more than a year earlier, and despite the fact that the trial date was rapidly approachin g, trial counsel delayed notifying Westvaco. It seems clear that trial counsel was, at best, attempting to gain a tactical advantage by delaying notification of Westvaco unti l the last possible date that could plausibly be claimed as th e date on which the final decision about calling Dr. Jemail h ad been made. This approach was not commendable, and the intentions of Konstantopoulos's trial counsel there fore cannot possibly weigh appreciably in her favor.10

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9. Konstantopoulos's trial attorney admitted that, as of January 1993, Jemail was being considered for "possible testimony ." App. 53. Konstantopoulos's counsel asserted that in January 1993, he "did not know whether [Jemail] was seen for purposes of test imony or treatment
or both." Id. 10. Konstantopoulos tries to characterize her trial counsel's failure to list Jemail and disclose the substance of her testimony and test results as "excusable delay," akin to the "lack of diligence" that was held not to
constitute bad faith in In re Paoli R.R. Yard PCB L itig. , 35 F.3d 717, 793 (3d Cir. 1994), cert. denied , General Electric Co. v. Ingram , 115 S.Ct. 1253 (1995). That case is inapposite. There, the ex pert had been
identified and the substance of most of his testimo ny had been disclosed prior to the discovery date. The plaintiff's delay in providing part of the testimony after substantial compliance was held to be excusable.

The instant case is more closely analogous to Sowel l v. Butcher & Singer, Inc. , 926 F.2d 289 (3d Cir. 1991). Several years before trial, the plaintiff in that case had been served with interro gatories, requesting the identification of experts and a summary of the subs tance of their testimony. See id. at 301. The plaintiff failed to list the experts u ntil shortly before trial and did not indicate what the substance of their testimony would be. See id. "The record include[d] a detailed exchange of correspondence between the parties' attorneys docum enting the refusal of [plaintiff's] counsel to make his experts availa ble or to supply information regarding the substance of their testim ony." Id.

Here, as in Sowell , "Counsel . . . failed to satisfy the obligations imposed upon him by the rules of discovery and cann ot now be heard to complain that the district court erred in failing t o admit expert testimony." Sowell , 926 F.2d at 302.

21We are unmoved by Konstantopoulos's argument that

Westvaco could have "cured" the prejudice resulting from trial counsel's late designation of Dr. Jemail as a n expert witness. The thrust of Konstantopoulos's argument i s that Westvaco, by means of sufficient last-minute scramb ling, could have managed to prepare to meet Dr. Jemail's expected testimony at trial. Even if this is true, however, Konstantopoulos would have gained a valuable tactic al advantage by requiring Westvaco to focus its litiga tion resources on these efforts in the last days before trial. Finally, even if we assume that permitting Dr. Jema il to testify would not have disrupted the commencement o r the progress of the trial in this case, that factor, ei ther alone or in conjunction with the other relevant factors, wou ld not persuade us that the district court's decision to e xclude Dr. Jemail's testimony constituted an abuse of discreti on.

In sum, after examining all of the factors identifi ed in our prior cases, we hold that the district court did no t abuse its discretion, and we therefore sustain its decision.

III.

The final question that we must address is whether the district court correctly held that the plaintiffs' state-law claims were barred by the Delaware Workmen's Compensation Act. The Act restricts an employee's a bility to assert a tort claim against his or her employer for "personal injury or death by accident arising out of and in t he course of employment." Del. Code Ann. tit. 19, § 2304 (199 6). However, the Act does not prevent an employee from recovering in tort for "any injury caused by the wi lful act of another employee directed against the employee by r easons personal to such employee and not directed against the employee as an employee or because of the employee' s employment." Del. Code Ann. tit. 19, § 2301(15) (19 96).

As previously noted, the plaintiffs' amended compla int
asserted three tort claims under Delaware law. Coun t III,
which asserted a claim for intentional infliction o f emotional distress, alleged that Westvaco and its agents and employees intentionally inflicted acts of sexual ha rassment and retaliation on Konstantopoulos. Count V, which

22asserted a claim for sexual assault and battery, al leged that

Westvaco was liable principally as a result of the incident in which Konstantopoulos's co-worker Greg Games violen tly grabbed her by the neck and stated: "I'd like to ki ll you." Finally, Count IV asserted a derivative claim for l oss of consortium on behalf of Konstantopoulos's husband.

The district court held that all of these claims we re barred by the Delaware Workmen's Compensation Act. The plaintiffs argued that these claims fell within the "personal dispute exception" contained in Del. Code Ann. tit. 19, § 2301(15), but the district court disagreed. The c ourt

wrote:

[T]here is no evidence of a pre-existing private af fair or dispute between plaintiff and any of her co-workers . To the contrary, the record is replete with evidence t hat any alleged misconduct occurred solely as a result of the tortfeasor-employees' relationship with the pla intiff at work. . . . [T]he tortfeasors' actions were rela ted to the duties of their jobs; the duties of the tortfea sors required them to work together or to be in close proximity or to communicate with the plaintiff; the incidents were stimulated by duties, assignments, o r conditions of work; and the incidents resulted from the fact that plaintiff was an employee of this particu lar employer. Accordingly, the facts of record clearly indicate that the alleged incidents arose out of th eplaintiffs' work relationship with the tortfeasoremployees as opposed to any affair or personal relationship originating outside the workplace.

6/4/93 Dist. Op. at 11.

On appeal, the plaintiffs argue that the "personal dispute exception" does not apply when an employee sexually harasses a co-worker for purely personal reasons. T he plaintiffs contend that the record bears "no eviden ce as to why Ms. Konstantopoulos' co-workers . . . assaulted her" and that "[o]ne definite possibility was that they were motivated by personal bias against Ms. Konstantopou los as a woman." Appellant's Br. at 49. Accordingly, the p laintiffs maintain, summary judgment on the state-law claims was improper.

23Because we found no decision of the Supreme Court o f

Delaware that definitively addressed the state-law issues raised in this appeal, we certified two questions o f state law to that court pursuant to Article IV, Section 11(9) of the Delaware Constitution and Delaware Supreme court Ru le 41.11 The Delaware Supreme Court accepted certifica tion and provided responses that, in our view, require
affirmance of the district court's decision.

Our certification included the following query:

Are an employee's claims against her employer for
intentional infliction of emotional distress and se xual assault and battery caused by acts of sexual harassment performed by co-employees arising out of and in the course of employment, and not based on any events occurring outside the course of employment, barred by the Delaware Workmen's Compensation Act, Del. Code Ann. Tit. 19, § 2301 et

seq . (1985), or may they be included in the exception
to the Act found at Del. Code Ann. Tit. 19 § 2301(15)(b)?

In response, the Delaware Supreme Court concluded t hat under the Act, "an employee's claim against her emp loyer for personal injuries sustained during the course o f employment, even if the offending conduct was of a sexual nature, is limited to the compensation provided by the Act."

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11. The certified questions were:

(1) Are an employee's claims against her employer f or intentional
infliction of emotional distress and sexual assault and battery caused by acts of sexual harassment performed by co -employees arising out of and in the course of employment, and not based on any events occurring outside the course of employme nt, barred by the Delaware Workmen's Compensation Act, Del. Code Ann. Tit. 19, § 2301 et seq . (1985), or may they be included in the exception to the Act found at Del. Code Ann. Tit. 19 § 2301(15(b )? Does the applicability of this exception depend in whole or in part on the subjective intent of the employee or employees who engage in the
harassment?

(2) If these claims are included in the exception f ound at Del. Code Ann. tit. 19 § 2301(15)(b), may the employer be hel d liable based on the doctrine of respondeat superior ?

24Konstantopoulos v. Westvaco Corp. , 1996 WL 580354 (Del.

Supr. Oct. 2, 1996) at 1. The court went on to conc lude that the "personal dispute exception" contained in Del. Code Ann. tit. 19, § 2301(15)(b) does not apply und er the facts set out in the certified question. Konstantop oulos

, 1996 WL 580354 at 2. The court reasoned that the "personal dispute exception" is "restricted to an i njury that is caused by conduct with origins outside of the wo rk place." Id. Since our certified question referred to conduct arising "out of and in the course of employment" an d "not based on any event occurring outside of the workpla ce," the court concluded that "[t]his type of conduct clearl y does not fall within the exclusion provided for an act `. . . not directed against an employee as an employee or beca use of the employee's employment.' " Id. (quoting Del. Code Ann. tit. 19, § 2301(15)(b) (emphasis added in Del. Sup. Ct. Op.). The court further observed that its interpretation of the act was compatible with its purpose and that "[i]t woul d not be appropriate for [the court] to create a new excepti on . . . for
sexual harassment claims." Id. at 3. In view of the Delaware Supreme Court's responses, it is apparent that the district court's disposition of the plaintiffs' state-law cl aims must
be affirmed.

For the reasons explained above, we affirm the deci sion
of the district court.

A True Copy:

Teste:

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

25