1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-6-1997

Konstantopoulos v. Westvaco Corp

Precedential or Non-Precedential:

Docket 94-7462

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Konstantopoulos v. Westvaco Corp" (1997). 1997 Decisions. Paper 96.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/96
Filed 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 Appellee
OPINION OF THE COURT 

ALITO, Circuit Judge: 

Sherlyn Konstantopoulos, a former employee of Westvaco 

Corporation, and her husband, Dimos Konstantopoulos, 

brought this action against Westvaco, asserting claims for 

sexual harassment and retaliation under Title VII of the 

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well 

as claims under Delaware law. The district court held that 

the state-law claims were barred by the state Workmen's 

Compensation Act, and after a bench trial on the Title VII 

claims, the court awarded some, but not all, of the relief 

that the plaintiffs sought. The plaintiffs then took this 

appeal, but we affirm. 

I. 

A. The following facts are either undisputed or were 

properly found by the district court. Sherlyn 

Konstantopoulos (hereinafter "Konstantopoulos") began 

work at Westvaco in September 1987. 6/30/94 Dist. Op. at 

3. After initially working as a "helper" in the "Finishing 

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 press that 

used large rolls of paper spliced together to create 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 given 

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 were 

working for the first time with women and where women 

were working for the first time with machinery." Id. at 32. 

During her time with this tour, "Ed Peterman, rather 

than provide substantial assistance to [Konstantopoulos] on 

 2 
[certain] assignments . . . , gave nonresponsive, sarcastic 

answers to [Konstantopoulos's] questions `quite a few 

times.' " For instance, Konstantopoulos testified that 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 Peterman 

that there was a malfunction on a particular machine, 

Peterman told her to fix the machine herself even though 

she had not been trained to do so. Id. Peterman also 

threatened on many occasions to send Konstantopoulos 

back to the Finishing Department if she could not perform 

in the Web Department. Id. Konstantopoulos's evaluations 

in late May reflected "below average ratings in several 

categories of work, including knowledge, quantity and 

quality of work, and judgment and common sense." Id. at 

9. 

During Konstantopoulos's assignment to "D" tour, Mike 

Marshall engaged on several occasions in sexually 

suggestive behavior directed toward her. 6/30/94 Dist. Ct. 

Op. at 7, 10-11. For instance, one day in April when she 

was working about 25 feet away from Marshall, with whom 

she had had no prior contact, "Marshall yelled: `Sherri, look 

at this.' [Konstantopoulos] looked up, `saw white' and 

Marshall's `pants' flaps open'; [Konstantopoulos] turned her 

head immediately and covered her eyes. [Konstantopoulos] 

continued working and did not discuss this experience with 

anyone." Id. at 7. Konstantopoulos testified that in June 

1989 Marshall made other similarly suggestive gestures or 

remarks on three occasions. See id. at 11. 

After these incidents, Konstantopoulos met with Frank 

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 21, 

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 foreman, 

Ron Hurley, was not training her. Id. Westvaco 

management then met with Marshall and Peterman, who

 3 
denied 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 measures' 

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 tour 

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 Dist. Ct. 

Op. at 3. Konstantopoulos experienced harassment during 

this tour as well. See id. at 14-16. One day in July 1989, 

she found a note that said: "Sherry doesn't need help, she 

needs a babysitter." Id. at 14. On approximately July 19, 

her locker (and three others) were damaged, and shortly 

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 had 

been damaged in retaliation for her complaints against 

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 remark 

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 incident to 

Cahall, who said that it would be difficult to identify the 

perpetrator and suggested that Konstantopoulos erase the 

writing or throw the clipboard away. Id. at 15. 

According to Konstantopoulos, during the period from 

July 23 to August 28, 1989, a co-worker, Greg Games, 

made several sexually insulting or threatening remarks 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 would 

like to kill her. Id.

"[Konstantopoulos] did not report any of these incidents 

to anyone at Westvaco at the time they occurred." Id. at 15. 

 4 
"[She] testified, however, that she was`upset,' `afraid,' 

`hurt,' `humiliated,' and `diminished' by the various 

incidents." Id. at 15-16. At the end of every tour, 

Konstantopoulos was evaluated by foreman Cahall, and 

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 that 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 supplied a 

second note from Dr. Terris, dated September 14, 1989, 

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 improvement"; 

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 complaint 

by reporting, among other things, that a "derogatory sexual 

remark" had been written about her on a clipboard and 

that foreman Cahall had not taken any action in response. 

Id. at 20. She stated that she had suffere d"anxiety and 

stress resulting in los[t] time from work and extensive 

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 letters, and 

on March 27, 1990, she commenced this action byfiling 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 tortious 

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 machinery and 

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

tour (April 23 and 24), she was temporarily transferred to 

the Finishing Department because there was not sufficient 

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 helper 

in the Web Department on Larry Cahall's tour. 6/30/94 

Dist. Ct. Op. at 18. Konstantopoulos informed Cahall 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 person in 

the Finishing Department with the most seniority who 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 also 

warned the crew that he would not tolerate any harassment 

of her. Id. In addition, Cahall made frequent visits to the 

Web Department that day, "entering through a different 

door each time, and he spent more time than he normally 

would in the area." Id.

Konstantopoulos made no complaints to Cahall that day, 

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 shook their 

fist[s]" at her and that another co-worker threw away 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, Konstantopoulos 

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 work 

related anxiety. She has now been referred to a local 

psychiatrist to continue therapy and has also been 

advised to stay off work for an additional 6-8 weeks. 

Sincerely, 

Costas A. Terris, M.D. 

 6 
Id. 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. Id. at 

20. 

B. As eventually amended, the complaint in this case 

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 II 

claimed that Westvaco had violated § 703(a) by engaging in 

various retaliatory actions against Konstantopolous as a 

result of the initial charge of sexual harassment that she 

filed with the EEOC in July 1989. Count III asserted a 

claim under Delaware law for intentional infliction of 

emotional distress, and Count V asserted a claim under 

Delaware law for sexual assault and battery. This claim was 

based on, among other things, the incident in which Greg 

Games grabbed Konstantopolous by the neck and stated 

that he would like to kill her. The remaining count, Count 

IV, asserted a claim under Delaware law by 

Konstantopolous's husband, Dimos Konstantopolous, for 

loss of consortium. 

In June 1993, the district court granted summary 

judgment in favor of Westvaco with respect to the counts of 

the complaint (Counts III, IV, and V) that asserted claims 

under state law. The court stated that "the facts of record 

clearly indicate that the alleged incidents arose out of 

[Konstantopoulos's] work relationship with the tortfeasoremployees as opposed to any affair or personal relationship 

originating outside the workplace," and the court therefore 

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, the court 

denied the plaintiffs' motion to amend the complaint to add 

a claim of negligent infliction of emotional distress. See id.

at 18. In addition, since Dimos Konstantopoulos's claim in 

Count IV was derivative of Counts III and V, the court 

granted summary judgment on Count IV as well. See id. at 

12 n.4. 

 7 
The remaining Title VII claims were tried without a jury 

in August 1993. After the trial, the court found that 

Westvaco had violated Title VII by subjecting 

Konstantopolous to a discriminatorily hostile or abusive 

work environment during the period from April 15 through 

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 physically 

threatening and/or humiliating discriminatory conduct." Id.

at 33-34. The court further concluded that 

Konstantopolous's "work performance was directly related 

to the discriminatory conduct alleged, i.e., the failure to 

train." Id. at 34. The court then stated: 

Having reviewed "all the circumstances," and although 

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 conditions of her 

employment. 

Id.

The district court further found that Westvaco "knew or 

should have known of the harassment and failed to take 

proper remedial action" during the period in question. 

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 informed 

of plaintiff's complaints; he, therefore, did not formally 

address the matter of additional training for plaintiff on 

the machinery and never addressed at all any 

additional training for the crew regarding defendant's 

policy against sexual harassment. It is clear from the 

record that defendant generally failed to provide its 

employees with the information and mechanisms 

necessary to successful effectuate its policies against 

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

defendants specifically failed to remedy the hostile 

work environment encountered by plaintiff during the 

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 defendant 

regarding the work environment) by October 1989 and

continued to so affirm through April 25, 1990." Id. The 

court therefore concluded that "the incidents alleged 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 and 

thereafter [was] not necessarily related to[Westvaco'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 therefore held 

that she had not been constructively discharged. See id. at 

36-37. 

Sherlyn and Dimos Konstantopolous then took this 

appeal. After briefing and oral argument, we certified two 

questions of state law to the Supreme Court of Delaware. 

Certification was accepted, and the Supreme Court of 

Delaware provided a response that we discuss in part III of 

this opinion. 

II. 

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

arguments. 

 9 
A. Konstantopolous first contends that the district court 

improperly evaluated the events that occurred during her 

second period of employment in isolation and that instead 

the court should have viewed them as a continuation of the 

harassment that had taken place seven months earlier. We 

hold, however, that the district court applied the correct 

legal standard and that its conclusion about the duration of 

the hostile or abusive environment to which 

Konstantopoulos was subjected is supported by the facts. 

"[A] plaintiff may establish a violation of Title VII by 

proving that discrimination based on sex has created 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 sufficiently severe 

or pervasive `to alter the conditions of [the victim's] 

employment and create an abusive working environment.' " 

Meritor Sav. Bank, 477 U.S. at 67 (citation omitted). The 

plaintiff must subjectively perceive the environment to be 

hostile or abusive, and conditions must be such that a 

reasonable person would have the same perception. Harris, 

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 that it had 

examined the totality of the circumstances. See Dist. Op. at 

30, 34. Konstantopoulos argues, however, that the court 

merely "paid lip service" to this principle and "then treated 

the incident of April 19, 1990 in isolation." Appellants' Br. 

at 22. In making this argument, Konstantopoulos focuses 

on the court's statement that the events of April 1990 were 

" `sufficiently removed in time to be considered 

independently from those occurring in 1989 and, 

 10 
considered 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 that the 

district court found that the effects of the harassment that 

occurred from April through August 1989 had dissipated by 

the time that Konstantopolous returned to work in April 

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 or 

abusive; and that the few incidents that occurred when 

Konstantopolous returned were not sufficiently numerous 

or severe to warrant the conclusion that the working 

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 returned 

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 the 

_________________________________________________________________ 

1. The parties disagree regarding the standard of appellate review that 

should be applied to the district court's conclusion that Konstantopoulos 

was not subjected to a hostile or abusive working environment in April 

1990. Konstantopoulos contends that the standard of review is plenary 

(Appellant's Br. at 1) while Westvaco argues that the appropriate 

standard is clear error. Appellee's Br. at 1. Neither 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 Amirmokri v. Baltimore Gas

& Electric Co., 60 F.3d 1126, 1130 (4th Cir. 1995) (same), with Fuller v.

City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995) (mixed question 

subject to de novo review). The Supreme Court "has long noted the 

difficulty of distinguishing between legal and factual 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 apply because under 

either standard we see no ground for reversing the district court's 

decision. 

 11 
beginning of the second is significant. This hiatus provided 

an opportunity for the lingering effects of the prior 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 continued 

to so affirm through April 25, 1990," when she eventually 

returned. 6/30/94 Dist. Ct. Op. at 35. Thus, 

Konstantopolous's conduct suggests that, in her mind, 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 gestures 

made by Marshall and Peterman -- squinting their eyes 

and shaking their fists -- this incident cannot in itself be 

characterized as particularly severe. Moreover, the only 

other incident cited by Konstantopoulos -- the throwing 

away of her lunch -- seems minor, since it is not clear that 

Konstantopolous's name was on the bag, and the offending 

co-worker stated that he had thrown it away accidentally. 

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 any 

improper conduct by co-workers could have been remedied. 

As previously noted, foreman Larry Cahall warned the 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, however, 

made no complaints to Cahall either during or after her 

shift, and when she returned to work the next day with 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 abusive 

environment when she returned to work in April 1990. 

To be sure, there are factors that point in the opposite 

direction. One of these is the severity of the conduct of her 

co-workers during the period from April through August 

 12 
1989. Although the district court observed that "one can 

find examples of conduct more severe than that evidenced 

of record," the court added that there was "essentially 

undisputed" evidence that Konstantopoulos was subjected 

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 assignment 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 of 

these men, but Konstantopoulos did not report any of the 

most serious incidents to anyone from Westvaco at the 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 assigned to 

work under Cahall's supervision, he took pains to prevent 

the recurrence of such abuse. Viewing all of the evidence 

bearing on Konstantopoulos's working environment in April 

1990, including all of the events that took place during her 

prior period of employment, we agree with the district court 

that she was not subjected to a hostile working 

environment in April 1990. 

Konstantopoulos argues that requiring her "to [w]ork 

[w]ith [t]he [v]ery [e]mployees [w]ho [h]ad [s]exually 

[h]arassed [h]er [s]even [m]onths [b]efore [c]onstituted 

[a]dditional [s]exual [h]arassment." Appellants' Br. at 23. To 

the extent that Konstantopoulos is simply arguing that her 

assignment in April 1990 to work in proximity to Marshall 

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 readily agree. 

As we believe we have already made clear, we view this as 

a significant factor weighing in her favor, but after 

examining the totality of the circumstances, we conclude 

that her reassignment to the Web Department and her

encounter with Marshall and Peterman are insufficient to 

 13 
justify 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 Court and 

our court make clear, the proper test is whether, under all 

the circumstances, a reasonable person would find the 

working environment to be hostile or abusive. See Harris, 

510 U.S. at 23; West, 45 F.3d at 756; Andrews, 895 F.2d 

at 1486. We therefore see no justification for adopting 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 relies, 

supports such a per se rule. In Cortes, an employee, Cortes, 

was subjected to severe and persistent sexual harassment 

by her immediate supervisor, Acero. See 977 F.2d at 197- 

98. Although Cortes complained about this harassment to 

her employer's human resources manager, he did nothing 

to rectify the situation. Id. Eventually, Cortes was 

transferred to another department, but Acero continued 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 manager 

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 environment. 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 transferred 

out of his department, Maxus transferred Cortes to this 

sexually abusive environment. When Cortes expressed

her fears about accepting the transfer, Maxus refused 

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

find no clear error in the district court's conclusion 

that these acts amounted to sexual harassment within 

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 employer to 

require a prior victim of sexual harassment to return to 

work in the company of co-workers responsible for the prior 

harassment. Rather, Cortes, in our view, merely held that 

the employer in that case violated Title VII by requiring 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 female agent 

(Ellison), who did not reciprocate his sentiments and found 

his conduct to be "weird[ ]," "crazy" and "frighten[ing]." 

Ellison, 924 F.2d at 874. After Ellison complained to their 

supervisor, Gray was temporarily transferred from the San 

Mateo, California, office to the San Francisco office, but he 

was permitted to return to San Mateo six months later. Id.

at 874. The Ninth Circuit held that "Gray's conduct, as 

alleged by Ellison, was sufficiently severe or pervasive to 

alter the conditions of Ellison's employment and create an 

abusive working environment." Id. at 876. Turning to the 

question whether the Treasury Department had taken 

sufficient remedial action to shield it from liability under 

Title VII, the Ninth Circuit concluded that it was unable to 

determine based on "the scant record" before it "whether 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 often 

Ellison and Gray would have to interact at San Mateo" and 

added that "the facts concerning the government's decision 

to return Gray to San Mateo" warranted further 

exploration. Id.

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

Rather, the court merely held that, based on the facts in 

the record, it was unable to determine whether the 

employer's decision to permit the harasser to return to the 

same office as the victim created an environment that 

violated Title VII. We recognize that the Ellison court stated 

that it believe that "in some cases the mere presence 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, it merely 

states that in some cases (i.e., those involving "particularly 

severe or pervasive harassment") the mere presence of the 

harasser "can" be enough to create a hostile environment. 

In sum, having considered the totality of the 

circumstances, we agree with the district court that, 

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 Konstantopoulos 

voluntarily left Westvaco's employ, Konstantopoulos cannot 

show the necessary predicate to maintain a constructive 

discharge claim, specifically, that there were "conditions of 

discrimination" so intolerable that a reasonable person 

would have resigned.2 Goss v. Exxon Office Sys. Co., 747 

_________________________________________________________________ 

2. Even if we had not reached this conclusion, we would 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. Allegheny 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 employees who claim to 

have been constructively discharged." Id. Contrary to Konstantopoulos's 

assertion, the district court did not "procee[d] impermissibly to impose 

those factors as additional requirements for a constructive discharge 

claim." Appellants' Br. at 28. The court merely used these factors as an 

illustrative guide in exactly the same manner as this court used those 

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

properly rejected her constructive discharge claim.

C. Konstantopoulos next contends that the district 

court abused its discretion in excluding the testimony of 

her expert psychological witness, Jay Ann Jemail, Ph.D., 

based on trial counsel's failure to comply with relevant 

pretrial discovery orders. "The trial court's exclusion of 

testimony because of the failure of counsel to adhere to a 

pretrial order will not be disturbed on appeal absent a clear 

abuse of discretion." Semper v. Santos, 845 F.2d 1233, 

1238 (3d Cr. 1988). In determining whether a district 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 the 

prejudice, (3) the extent to which waiver of the rule 

against calling unlisted witnesses would disrupt the 

orderly and efficient trial of the case or other cases in 

the court, and (4) bad faith or wilfulness in failing 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 testimony" 

should be considered. Meyers, 559 F.2d at 904. "[T]he 

exclusion of critical evidence is an `extreme' sanction, 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 

_________________________________________________________________ 

factors in Clowes, determining that an absence of strong evidence for 

any of the factors supported a finding that the plaintiff 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. 

 17 
testimony. Two factors strongly support the district court's 

decision. First, this is clearly a case that involves a 

" `flagrant disregard' of a court order by the proponent 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 cutoff 

date for expert witness discovery was extended at least 

three times before a final cutoff date of January 1992 was 

set. Nevertheless, Dr. Jemail did not see Konstantopoulos 

until January 1993, one year after the cutoff date, and 

plaintiffs' trial counsel did not advise opposing counsel that 

Dr. Jemail would be called as an expert witness until a 

pretrial conference on July 29, 1993, long after Dr. Jemail 

was first consulted and approximately three weeks prior to 

the scheduled trial date. Even then, plaintiffs' trial counsel 

did not fully comply with his discovery obligations relating 

to Dr. Jemail's testimony, and indeed he had not fully met 

those obligations when the district court held, on August 

13, 1993, that Dr. Jemail's testimony would be excluded. 

Based on these facts alone, we are satisfied that this case 

qualifies as one involving flagrant disregard of the pretrial 

order.3 

Second, we are satisfied that Westvaco was prejudiced. 

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. Jemail 

until approximately three weeks before the scheduled trial 

date. Another week elapsed before plaintiffs' trial counsel 

revealed the substance of Dr. Jemail's expected testimony. 

See App. 53-56. Counsel listed only two dates -- on August 

13 after 3 p.m. and August 17, after 4 p.m. -- when Dr. 

Jemail would be available for deposition, and no report 

written by Dr. Jemail was ever turned over because,

_________________________________________________________________ 

3. Because we find that this case involves a "flagrant" 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 court order or willful 

deception). As to the question of willfulness in this case, see footnote 7, 

infra. 

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

circumstances, the finding of prejudice was justified.4 

The district court did not make findings with respect 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 efficient 

trial of this or other cases.5 However, it is apparent that 

none of these factors weighs heavily against the exclusion 

of Dr. Jemail's testimony, and therefore a remand for 

further findings is not necessary. With respect to the 

importance of Dr. Jemail's expected testimony, it appears 

that some, but not all, of her testimony was covered by the 

testimony of another plaintiffs' witness, Dr. Antonio Sacre, 

_________________________________________________________________ 

4. We are likewise satisfied that Westvaco was surprised when, 18 

months after the extended discovery cutoff and approximately three 

weeks before trial, plaintiffs' trial counsel informally notified it during a 

pretrial conference that he intended to call a previously 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 know that Ms. 

Konstantopoulos' psychological condition and the cause of that 

condition were hotly contested issues in the case, but had also 

known since January 1993 that Ms. Konstantopoulos was seeing a 

new psychologist. 

Appellants' Br. at 41. This is surely a strange argument. 

Konstantopoulos would have us believe that, prior to July 29, 1993, her 

trial counsel did not know that he would seek to call Dr. Jemail as an 

expert witness and thus should be excused for failing to disclose that 

intention any sooner, id. at 37-38, but at the same time Konstantopoulos 

argues that Westvaco should have guessed well before July 29, 1993, 

that her trial counsel would have to and would attempt 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 its 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 court 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. 

 19 
the psychiatrist who treated Konstantopoulos.6 We do not 

regard this factor as particularly favorable to either side in 

this case. 

We are likewise convinced that the issue of trial counsel'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. Westvaco 

contends that Konstantopoulos's trial counsel made that 

decision months before he eventually notified Westvaco at 

the July 29, 1993, pretrial conference.8 By contrast, 

_________________________________________________________________ 

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] therapeutic needs; 

(4) the results of the MMPI-2; and (5) the questionable validity of the 

testing done by [defendant's experts]." Appellants' Br. at 33. However, 

the first three subjects were covered in the testimony of Dr. Sacre. The 

only subject not covered by plaintiff's experts were the results and 

validity of the MMPI-2 test. Konstantopoulos sought to impeach the 

credibility of defendant's expert, Dr. Raskin, by casting doubt on the 

applicability and reliability of the MMPI-2. Dr. Raskin did not refer to the 

test by name on direct examination, but indicated that some of his 

conclusions were based on psychological testing. 

7. The district court made no finding regarding trial counsel's good or 

bad faith. On appeal, Konstantopoulos notes that Westvaco 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 that 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 characterization of the 

district court's order excluding Dr. Jemail's testimony. Making no finding 

on the question of bad faith (which is what the district court did) is quite 

different from finding that there was no bad faith.

8. Relying on time sheets submitted by Konstantopoulos's trial counsel 

in connection with his application for attorney's fees, Westvaco contends 

that trial counsel prepared a subpoena for Dr. Jemail 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. Jemail as an expert 

witness, we would remand this case to the district court for an 

exploration of the significance of these facially troubling records, which 

were not called to the attention of the district court in relation to the 

question of trial counsel's alleged bad faith. However, because we do not 

think that it is necessary to make this determination, we do not find a 

remand to be essential. 

 20 
Konstantopoulos argues that her trial attorney did not 

make that final decision until shortly before the pretrial 

conference. However, Konstantopoulos does not dispute 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 approaching, 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 until the last 

possible date that could plausibly be claimed as the date on 

which the final decision about calling Dr. Jemail had been 

made. This approach was not commendable, and the 

intentions of Konstantopoulos's trial counsel therefore 

cannot possibly weigh appreciably in her favor.10 

_________________________________________________________________ 

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 testimony 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 Litig., 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 expert had been 

identified and the substance of most of his testimony 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 Sowell v. Butcher &

Singer, Inc., 926 F.2d 289 (3d Cir. 1991). Several years before trial, the 

plaintiff in that case had been served with interrogatories, requesting the 

identification of experts and a summary of the substance of their 

testimony. See id. at 301. The plaintiff failed to list the experts until 

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 documenting the refusal 

of [plaintiff's] counsel to make his experts available or to supply 

information regarding the substance of their testimony." Id.

Here, as in Sowell, "Counsel . . . failed to satisfy the obligations 

imposed upon him by the rules of discovery and cannot now be heard to 

complain that the district court erred in failing to admit expert 

testimony." Sowell, 926 F.2d at 302. 

 21 
We are unmoved by Konstantopoulos's argument that 

Westvaco could have "cured" the prejudice resulting from 

trial counsel's late designation of Dr. Jemail as an expert 

witness. The thrust of Konstantopoulos's argument is that 

Westvaco, by means of sufficient last-minute scrambling, 

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 tactical 

advantage by requiring Westvaco to focus its litigation 

resources on these efforts in the last days before trial. 

Finally, even if we assume that permitting Dr. Jemail to 

testify would not have disrupted the commencement or the 

progress of the trial in this case, that factor, either alone or 

in conjunction with the other relevant factors, would not 

persuade us that the district court's decision to exclude Dr. 

Jemail's testimony constituted an abuse of discretion. 

In sum, after examining all of the factors identified in our 

prior cases, we hold that the district court did not 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 ability to 

assert a tort claim against his or her employer for "personal 

injury or death by accident arising out of and in the course 

of employment." Del. Code Ann. tit. 19, § 2304 (1996). 

However, the Act does not prevent an employee from 

recovering in tort for "any injury caused by the wilful act of 

another employee directed against the employee by reasons 

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) (1996). 

As previously noted, the plaintiffs' amended complaint 

asserted three tort claims under Delaware law. Count III, 

which asserted a claim for intentional infliction of emotional 

distress, alleged that Westvaco and its agents and 

employees intentionally inflicted acts of sexual harassment 

and retaliation on Konstantopoulos. Count V, which 

 22 
asserted a claim for sexual assault and battery, alleged that 

Westvaco was liable principally as a result of the incident in 

which Konstantopoulos's co-worker Greg Games violently 

grabbed her by the neck and stated: "I'd like to kill you." 

Finally, Count IV asserted a derivative claim for loss of 

consortium on behalf of Konstantopoulos's husband. 

The district court held that all of these claims were 

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 court 

wrote: 

[T]here is no evidence of a pre-existing private affair or 

dispute between plaintiff and any of her co-workers. To 

the contrary, the record is replete with evidence that 

any alleged misconduct occurred solely as a result of 

the tortfeasor-employees' relationship with the plaintiff 

at work. . . . [T]he tortfeasors' actions were related to 

the duties of their jobs; the duties of the tortfeasors 

required them to work together or to be in close 

proximity or to communicate with the plaintiff; the

incidents were stimulated by duties, assignments, or 

conditions of work; and the incidents resulted from the 

fact that plaintiff was an employee of this particular 

employer. Accordingly, the facts of record clearly 

indicate that the alleged incidents arose out of the 

plaintiffs' 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. The 

plaintiffs contend that the record bears "no evidence 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. Konstantopoulos as 

a woman." Appellant's Br. at 49. Accordingly, the plaintiffs 

maintain, summary judgment on the state-law claims was 

improper. 

 23 
Because we found no decision of the Supreme Court of 

Delaware that definitively addressed the state-law issues 

raised in this appeal, we certified two questions of state law 

to that court pursuant to Article IV, Section 11(9) of the 

Delaware Constitution and Delaware Supreme court Rule 

41.11 The Delaware Supreme Court accepted certification 

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 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 

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 that 

under the Act, "an employee's claim against her employer 

for personal injuries sustained during the course of 

employment, even if the offending conduct was of a sexual 

nature, is limited to the compensation provided by the Act." 

_________________________________________________________________ 

11. The certified questions were: 

(1) Are an employee's claims against her employer for 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 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)? 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 found at Del. Code 

Ann. tit. 19 § 2301(15)(b), may the employer be held liable based on 

the doctrine of respondeat superior? 

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

Supr. Oct. 2, 1996) at 1. The court went on to conclude 

that the "personal dispute exception" contained in Del. 

Code Ann. tit. 19, § 2301(15)(b) does not apply under the 

facts set out in the certified question. Konstantopoulos, 

1996 WL 580354 at 2. The court reasoned that the 

"personal dispute exception" is "restricted to an injury that 

is caused by conduct with origins outside of the work 

place." Id. Since our certified question referred to conduct 

arising "out of and in the course of employment" and "not 

based on any event occurring outside of the workplace," the 

court concluded that "[t]his type of conduct clearly does not 

fall within the exclusion provided for an act `. . . not 

directed against an employee as an employee or because 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 would not be 

appropriate for [the court] to create a new exception . . . 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 claims must 

be affirmed. 

For the reasons explained above, we affirm the decision 

of the district court. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

 25