1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-29-1997

Knabe v. The Boury Corp

Precedential or Non-Precedential:

Docket 95-3614

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Recommended Citation

"Knabe v. The Boury Corp" (1997). 1997 Decisions. Paper 116.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/116
Filed May 29, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 95-3614 

KARLA J. KNABE, 

APPELLANT

v. 

THE BOURY CORP. d/b/a Big Boy East 

d/b/a Elby's Big Boy, 

APPELLEE

On Appeal From the United States District Court 

For the Western District of Pennsylvania 

(D.C. Civ. No. 94-cv-01627) 

Argued: December 10, 1996 

Before: BECKER, MANSMANN, and GREENBERG, 

Circuit Judges. 

(Filed May 29, 1997) 

J. GREGORY GIANNUZZI, 

 ESQUIRE (ARGUED) 

VINCENT A. CICCONE, ESQUIRE 

Giannuzzi & Ciccone 

Penn Oak Professional Building 

85 Universal Road 

Pittsburgh, PA 15235 

Attorneys for Appellant
CAROLE S. KATZ, ESQUIRE 

 (ARGUED) 

STACY L. DUGGAN, ESQUIRE 

Reed, Smith, Shaw & McClay 

435 Sixth Avenue 

Pittsburgh, PA 15219-1886 

Attorneys for Appellee

OPINION OF THE COURT 

BECKER, Circuit Judge. 

This appeal by Karla Knabe arises from her civil action 

against Boury Corporation alleging that she was a victim of 

unlawful sexual harassment in violation of Title VII of the 

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

Pennsylvania Human Relations Act, 43 Pa. C.S. § 951 et 

seq., while she was employed as a waitress at Boury's 

"Elby's Big Boy" restaurant in Monroeville, Pennsylvania. 

Knabe contends that she was subjected to a hostile work 

environment created by Kevin Humbrecht, one of the 

restaurant managers. The district court, having concluded 

that Boury was not liable as a matter of law for 

Humbrecht's actions because it took prompt and adequate 

remedial action after Knabe reported the harassment to 

company officials, as required by Bouton v. BMW of North

America, Inc., 29 F.3d 103 (3d Cir. 1994), granted summary 

judgment to Boury. Although we view the facts in the light 

most favorable to Knabe, the non-moving party, because we 

conclude that there is no genuine issue of material fact that 

the actions taken by Boury in response to Knabe's 

complaint were other than "reasonably calculated" to 

prevent future acts of harassment, we affirm.1 

_________________________________________________________________ 

1. Knabe makes two other contentions on appeal, both of which we reject 

summarily. First, Knabe contends that the district court erred in 

granting summary judgment without addressing her"retaliation" claim. 

Knabe's complaint, however, fails to plead a retaliation count. Second, 

Knabe contends that the district court erred in rejecting her constructive 

discharge claim. We disagree. Knabe's constructive discharge claim, as 

 2 
I. 

Knabe began working as a waitress at the Elby's Big Boy 

restaurant on August 6, 1993. According to her affidavit 

and deposition testimony, over the course of the following 

two months, Humbrecht engaged in several acts of sexual 

harassment. On at least a dozen occasions, he bumped into 

her from behind, rubbed himself against her, or ran his 

hands over her buttocks at the pie cooler or in other 

behind-the-counter spaces. On one occasion in September 

1993, Knabe showed Humbrecht a broken light in the 

women's restroom. Several male employees were standing 

just outside, and as Humbrecht and Knabe exited, 

Humbrecht pretended to pull up his pants and his zipper in 

the presence of the other employees. Knabe testified that, 

when she expressed her displeasure after each of these 

incidents, Humbrecht responded "don't take it personal." 

On September 5, 1993, Knabe fell in the waitress area, 

causing her skirt to come up and exposing most of her legs 

and lower body. Sometime after her fall, Humbrecht asked 

her whether she had been wearing underwear when she

fell. And on October 13, 1993, Humbrecht called Knabe at 

home at approximately 7:50 a.m. to ask her to come into 

work early. She told him she would be in after she had 

showered and had a cup of coffee. Later that day, 

Humbrecht asked her whether she had been having sex

with her fiance when he called that morning. 

_________________________________________________________________ 

presented here, is not a separate ground for relief, but rather would 

factor into the damages (e.g., backpay) available to Knabe had she 

prevailed in proving Boury's liability for sexual harassment. At all events, 

Knabe has not presented evidence sufficient to sustain a constructive 

discharge claim under Goss v. Exxon Office Systems Co., 747 F.2d 885, 

887-88 (3d Cir. 1984), where we held that a plaintiff has been 

constructively discharged if "the conduct complained of would have the 

foreseeable result that working conditions would be so unpleasant or 

difficult that a reasonable person in the employee's shoes would resign." 

Id.; see also Gray v. York Newspapers, Inc., 957 F.2d 1070, 1079 (3d Cir. 

1992). As we conclude that Knabe has not adduced evidence that the 

remedial action chosen by Boury was lacking, we think it is clear that 

Knabe could not meet this test. 

 3 
After Knabe had threatened to report his conduct to his 

supervisor, Humbrecht removed her from the work schedule.2 

Knabe testified that, throughout her employment, whenever 

she had threatened to report him, Humbrecht told her that 

"life in the unemployment line" was very unpleasant. Knabe 

has acknowledged that, except for the restroom episode, 

there were no witnesses to any of Humbrecht's actions. 

On October 20, 1993, Knabe complained by telephone to 

Sharon Barnes, who supervised the Monroeville restaurant 

as well as four other Elby's. Knabe reported the instances 

of harassment described above, as well as the fact that she 

had been taken off the work schedule when she threatened 

to report Humbrecht.3 This was the first indication to Elby's 

management about Humbrecht's conduct. Barnes 

consulted Elby's procedures for investigating a sexual 

harassment complaint, and also contacted the director of 

Big Boy East and Elby's legal counsel for advice about 

investigation procedure. 

On October 21, 1993, Barnes interviewed Humbrecht. He 

denied any improper comments to Knabe on October 13, 

1993, and Barnes did not ask him about the other 

incidents. Barnes, along with Elby's director of operations, 

met with Knabe on October 23, 1993, and Knabe informed 

them that she wanted Humbrecht to be discharged or 

transferred to another restaurant. Barnes then interviewed 

three of Knabe's co-workers, all of whom had worked on 

Knabe's shift on October 13, 1993. Each reported to Barnes 

that they had not witnessed Humbrecht make any improper 

statements to Knabe, and that they had never observed any 

inappropriate behavior by a manager in the restaurant. 

At the conclusion of her investigation, Barnes decided not 

to reprimand or otherwise sanction Humbrecht, based on 

_________________________________________________________________ 

2. Boury's version is that Knabe was removed from the schedule as a 

disciplinary measure for writing a rude note to Randy Gilbert, the 

manager responsible for scheduling, and for telling Humbrecht how to 

run the restaurant. 

3. In her affidavit, Knabe stated that, when she reported the harassment, 

Barnes said that she "thought Kevin had learned his lesson." Barnes 

explained in her declaration that Humbrecht had been transferred to the 

Monroeville Elby's because he had engaged in a consensual affair with a 

female subordinate at another Elby's. 

 4 
her (mistaken) belief that she could not make afinding that 

an employee had engaged in sexual harassment without 

corroborating testimony. However, she met with Humbrecht 

and informed him that Knabe was to be returned to the 

work schedule immediately. More importantly, Barnes

reminded him that the "company does not tolerate any 

sexual comments or actions" and that any "company 

violations of this policy will receive possible suspension and 

or termination." Both Barnes and Humbrecht signed a

"record of conversation" acknowledging the substance of the 

conversation. Humbrecht also acknowledged that the 

"procedures were explained to me and I do understand 

them. I will continue to adhere to them." 

The next day, October 26, Barnes met with Knabe. She 

informed Knabe that, because there were no witnesses to 

Humbrecht's conduct, she could not conclude that 

Humbrecht had done anything inappropriate and, hence, 

she could not reprimand Humbrecht. Barnes also told

Knabe that she had been restored to the work schedule, 

and that she should call Barnes or certain other members 

of Elby's management if the conduct recurred. Knabe

responded by informing Barnes that she could not return to 

work because Humbrecht had not been transferred or fired, 

and that she would pursue her recently filed EEOC charge. 

Both Barnes and Knabe signed the record of conversation 

reporting the substance of the conversation. 

Boury's papers represent that, at all times during the 

period in question, the company's sexual harassment and 

open door policies were posted on the Communications 

Board at the restaurant along with the names and phone 

numbers of company managers to contact to lodge a 

complaint. Moreover, the open door policy appeared in the 

employee handbook. Knabe, however, testified that she 

never saw these policies during her employment at the 

restaurant. 

In September 1994, Knabe filed a complaint in the 

District Court for the Western District of Pennsylvania, 

alleging that she was a victim of unlawful harassment in 

violation of Title VII of the Civil Rights Act of 1964, 42 

U.S.C. § 2000e et seq., and the Pennsylvania Human 

Relations Act, 43 Pa. C.S. § 951 et seq. After discovery, 

 5 
Boury moved for summary judgment. The magistrate judge 

to whom the case was referred filed a report concluding 

that, while there was a genuine issue of material fact as to 

whether Knabe was subjected to a hostile work 

environment, Boury could not be held liable as a matter of 

law for Humbrecht's actions because it took prompt and 

effective remedial action after learning of Humbrecht's 

conduct, as required under Andrews v. City of Philadelphia, 

895 F.2d 1469 (3d Cir. 1990), and Bouton v. BMW of North

America, Inc., 29 F.3d 103 (3d Cir. 1994), and hence 

recommended that Boury's motion be granted. After a de 

novo review of the pleadings and evidence, the district court 

adopted the magistrate judge's report and granted 

summary judgment to Boury. On appeal, Knabe contends 

that there are genuine issues of material fact that preclude 

summary judgment in Boury's favor. The standards for 

summary judgment and our standard of review are well 

known and are set forth in the margin.4 

II. 

A. 

Knabe contends that Humbrecht subjected her to a 

hostile work environment during her two months of 

_________________________________________________________________ 

4. Summary judgment is proper "if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if 

any, show that there is no genuine issue as to any material fact and that 

the moving party is entitled to judgment as a matter of law." Fed. R. Civ. 

P. 56(c). Upon a motion for summary judgment, the non-moving party, 

to prevail, must "make a showing sufficient to establish the existence of 

[every] element essential to that party's case, and on which that party 

will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 

317, 322 (1986). In evaluating whether the non-moving party has 

established each necessary element, we must grant all reasonable 

inferences from the evidence to the non-moving party. See Matsushita

Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574 (1986). "Where the 

record taken as a whole could not lead a reasonable trier of fact to find 

for the non-moving party, there is no `genuine issue for trial.' " Id. at 

587. Our review on appeal is plenary. The district court exercised 

jurisdiction under 28 U.S.C. §§ 1331 and 1367(a), and we have appellate 

jurisdiction over the final order under 28 U.S.C. § 1291. 

 6 
employment at the Monroeville Elby's. See Meritor Sav.

Bank v. Vinson, 477 U.S. 57, 66 (1986) ("[A] plaintiff may 

establish a violation of Title VII by proving that 

discrimination based on sex has created a hostile or 

abusive work environment.") We have held that, to bring a 

claim for sexual harassment under Title VII because of an 

intimidating and offensive work environment, a plaintiff 

must establish " `by the totality of the circumstances, the 

existence of a hostile or abusive working environment 

which is severe enough to affect the psychological stability 

of a minority employee.' " Andrews, 895 F.2d at 1482 

(quoting Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d 

1503, 1510 (11th Cir. 1989)). Even if a work environment 

is found to be hostile, a plaintiff must also show that the 

conduct creating the hostile work environment should be 

imputed to the employer. 

In Andrews, we set forth the five factors that a plaintiff 

must establish to bring a successful hostile work 

environment claim against his or her employer: (1) the 

employee suffered intentional discrimination because of his 

or her sex; (2) the discrimination was pervasive and regular; 

(3) the discrimination detrimentally affected the plaintiff; (4) 

the discrimination would detrimentally affect a reasonable 

person of the same sex in that position; and (5) respondeat 

superior liability existed. Id.; see also Spain v. Gallegos, 26 

F.3d 439, 447 (3d Cir. 1994).5 

The crucial question here is the fifth factor: whether 

Boury can be held liable for Humbrecht's actions.6 In 

_________________________________________________________________ 

5. Employer liability under the Pennsylvania Human Relations Act 

follows the standards set out for employer liability under Title VII. See

Hoy v. Angelone, 691 A.2d 476 (Pa. Super. Ct. 1997); see also West v.

Philadelphia Elec. Co., 45 F.3d 744 (3d Cir. 1995) (utilizing Title VII 

standards in case involving PHRA hostile work environment claim). 

6. The district court concluded that Knabe has established a genuine 

issue of material fact as to whether Humbrecht created a hostile work 

environment. Boury contends that, even if we conclude that Knabe has 

presented a genuine issue of material fact on the question whether 

Boury can be held liable for Humbrecht's alleged actions, we should 

affirm the summary judgment on the ground that Knabe had not 

presented sufficient evidence to establish the existence of pervasive and 

severe harassment. Because of our disposition of this appeal, we need 

not reach that question. 

 7 
Vinson, supra, the Supreme Court rejected the notion that 

employers are strictly liable for sexually hostile work 

environments created by employees. Rather, drawing from 

the fact that an "agent" of an employer is included in the 

definition of employer in Title VII, 42 U.S.C. § 2000e(b), the 

Court directed that agency principles be used as guidance 

in determining employer liability for hostile work 

environments created by employees. 477 U.S. at 72. We 

elaborated on those agency principles in Bouton v. BMW of

North America, Inc., 29 F.3d 103 (3d Cir. 1994). 

We made clear in Bouton that the liability of an employer 

is not automatic even if the sexually hostile work 

environment is created by a supervisory employee.7 We 

recognized three potential bases in the Restatement

(Second) of Agency for holding employers liable for 

harassment committed by their employees. First, under 

§ 219(1), employers are liable for the torts committed by 

employees within the scope of their employment. We noted 

in Bouton that, while such scope-of-employment liability is 

often invoked in quid pro quo cases because a supervisor 

has used his or her actual authority over the employee to 

gain sexual favors, this liability is inapposite in hostile 

environment cases: "[I]n a hostile environment case, the 

harasser is not explicitly raising the mantle of authority to 

cloak the plaintiff in an unwelcome atmosphere." Bouton, 

29 F.3d at 107. 

Agency law provides two other theories through which a 

plaintiff can hold an employer liable for sexual harassment, 

which are more appropriate in a sexually hostile work 

environment case like Knabe's. Under Restatement

§ 219(2)(b), employers are liable for their own negligence or 

recklessness: in this context, an employer is liable for 

"negligent failure to discipline or fire, or failure to take 

remedial action upon notice of harassment." Bouton, 29 

F.3d at 106. And under § 219(2)(d), employers are liable if 

the harassing employee "relied upon apparent authority or 

_________________________________________________________________ 

7. Knabe, therefore, incorrectly asserts that respondeat superior liability 

automatically attaches to the employer when a supervisor, who has the 

authority to hire, fire, and discipline the victim of the harassment, 

creates the hostile work environment. 

 8 
was aided by the agency relationship." Id. Knabe relies on 

the former principle in contending that Boury is liable for 

the hostile work environment created by Humbrecht. 

B. 

Knabe submits that there is a genuine issue of material 

fact whether Boury was negligent or reckless in responding 

to her complaint that Humbrecht harassed her. We have 

explained that an employer is liable for an employee's 

behavior under a negligence theory of agency "if a plaintiff 

proves that management-level employees had actual or 

constructive knowledge about the existence of a sexually 

hostile work environment and failed to take prompt and 

adequate remedial action." Andrews, 895 F.2d at 1486; 

Bouton, 29 F.3d at 107 ("[U]nder negligence principles, 

prompt and effective action by the employer will relieve it of 

liability.").8 Knabe concedes that Boury cannot be charged 

with knowledge of Humbrecht's activities until October 20, 

1993, when Knabe complained to Barnes. Thus the 

question here is whether Boury took prompt and adequate 

action after receiving notice of Humbrecht's alleged actions 

on October 20, 1993. 

_________________________________________________________________ 

8. Our holding in Bouton that prompt and effective remedial action by an 

employer will relieve it of liability under a negligence theory of agency, 29 

F.3d at 107, does not alter our holding in Andrews that an employer's 

failure to take prompt and adequate remedial action may expose it to 

such liability, 895 F.2d at 1486. As we will discuss in the text, a 

remedial action is adequate if it is reasonably calculated to prevent 

further harassment. In Bouton, the remedial action was deemed 

adequate under the Andrews test because it was effective. This makes 

sense. A remedial action that effectively stops the harassment will be 

deemed adequate as a matter of law. On the other hand, it is possible 

that an action that proves to be ineffective in stopping the harassment 

may nevertheless be found reasonably calculated to prevent future 

harassment and therefore adequate. Thus, where an employer's prompt 

remedial action is not effective (or, as in this case, where the 

effectiveness of the prompt remedial action cannot be tested), courts may 

still decide that the action was adequate as a matter of law. Hence, 

though Knabe's decision to quit prevents us from determining whether 

Boury's remedial action was effective, the question before us is whether 

there is a genuine issue of material fact as to whether that action was 

adequate. 

 9 
Knabe does not challenge the district court's conclusion 

that Boury's response to her complaint was prompt. 

Rather, she focuses on the requirement that a remedial 

action must be adequate, and she contends that there is a 

genuine issue of material fact regarding the adequacy of 

Boury's actions. According to Knabe, Barnes' investigation 

was so flawed that it could not have produced an adequate 

remedial action. To support this claim, she has presented 

several pieces of evidence that Barnes' investigation had 

significant flaws. 

First, she points to certain aspects of Barnes' deposition 

testimony. Barnes testified that she believed she could not 

make a finding that an employee had engaged in sexual 

harassment without a witness who could corroborate the 

complainant's allegations. Accordingly, she believed that 

she could not reprimand Humbrecht because there were no 

witnesses to the alleged harassment. In related testimony, 

Barnes also stated that she did not take Knabe's credibility 

into account in investigating the claim. In short, Knabe 

submits, Barnes would not have reprimanded Humbrecht 

because there were no witnesses to the harassment even if 

she found Knabe's complaint to be fully credible. 

Knabe also points to Barnes' records of conversation, 

which show that Barnes questioned Humbrecht only about 

the October 13 incident and not about the other alleged 

instances of harassment. Similarly, she asked the three 

employees whom she interviewed whether they had ever 

observed any manager at the restaurant make any 

improper advances or comments, without referencing 

Knabe's specific allegations. Moreover, she failed to 

interview the employees who witnessed the bathroom 

incident. Knabe contends that, because of these 

circumstances, Barnes' investigation failed to turn up 

information that was vital to determining whether 

Humbrecht had harassed her. According to Knabe, the

resulting response by Boury was ineluctably inadequate, 

and she would have returned to an unabated hostile work 

environment. Based on this evidence, Knabe contends that 

the investigation was so poorly run that there is a genuine 

 10 
issue of material fact as to whether the remedial action 

taken was adequate.9 

We disagree. The question before us is not whether the 

investigation was adequate -- it appears not to have been 

-- but rather whether the remedial action was adequate. 

Even if a company's investigation into complaints of sexual 

harassment is lacking, the employer cannot be held liable 

for the hostile work environment created by an employee 

under a negligence theory of liability unless the remedial 

action taken subsequent to the investigation is also lacking.10 

In other words, the law does not require that investigations 

into sexual harassment complaints be perfect. Rather, to 

determine whether the remedial action was adequate, we 

must consider whether the action was "reasonably 

calculated to prevent further harassment." See, e.g., Saxton

v. AT&T Co., 10 F.3d 526, 535 (7th Cir. 1993); Ellison v.

Brady, 924 F.2d 872, 882 (9th Cir. 1991); Katz v. Dole, 709 

F.2d 251, 256 (4th Cir. 1983). 

It is clear to us that the action taken here was reasonably 

calculated to stop Humbrecht's harassment, even viewing 

the facts in the light most favorable to Knabe. Although 

Barnes testified that she was unable to make afinding that 

harassment occurred or to subject Humbrecht to 

disciplinary measures without a corroborating witness (an 

incorrect premise), she nevertheless took remedial action.11 

_________________________________________________________________ 

9. Knabe also points to evidence that Humbrecht had been transferred to 

the Monroeville restaurant because he had engaged in a consensual 

affair with an employee he supervised at another restaurant. See supra

n.3. She contends that Barnes' failure to take this information into 

account in assessing whether Humbrecht harassed Knabe constituted 

another serious flaw in Barnes' investigation. This contention, however, 

is based on speculation that Humbrecht had also harassed the employee 

at his prior post, and Knabe has presented no evidence of prior sexual 

harassment claims lodged against Humbrecht. The evidence regarding 

Humbrecht's transfer to the Monroeville restaurant is, therefore, 

irrelevant. 

10. That said, employers would be well advised to establish protocols to 

ensure careful and complete investigation of sexual harassment 

complaints. 

11. Of course, we do not imply that the presence of a corroborating 

witness may not be important to an employer in determining that 

 11 
The record of the conversation between Barnes and 

Humbrecht on October 25, which was signed by both 

Barnes and Humbrecht, reflects that Barnes warned 

Humbrecht that the "company does not tolerate any sexual 

comments or actions. Any company violations of this policy 

will receive possible suspension and/or termination." 

Moreover, Humbrecht was directed to restore Knabe to the 

schedule immediately. The record of the conversation 

between Barnes and Knabe the next day, which was signed 

by Knabe and Barnes, demonstrates that Knabe was 

informed that she should contact the company at any time 

regarding any improper language or sexual advances.

Barnes also provided Knabe with the names and phone

numbers of four members of Boury management, including 

herself, whom Knabe could contact with any future 

complaints. 

Even though the company did not reprimand Humbrecht, 

as it well might have, we find this remedial action adequate 

as a matter of law because it was reasonably calculated to 

prevent further harassment. As a result of the two meetings 

with Barnes, Humbrecht was made aware of his 

responsibilities, and Knabe was made aware of her rights in 

case of future improper conduct. Knabe has presented no 

evidence that there would have been a hostile work 

environment had she returned or that Humbrecht would 

have felt free to continue his harassment upon her return 

to work. See Ryczek v. Guest Servs. Inc., 877 F. Supp. 754, 

759 (D.D.C. 1995) ("Even if the investigation was not 

handled perfectly, the plaintiff has presented no evidence to 

suggest that Guest Services did anything that would have 

allowed any harassment to continue."); cf. Konstantopoulos

v. Westvaco Corp., ___ F.3d ___, 1997 WL 222821 (3d Cir. 

1997) (rejecting a per se rule that requiring an employee to 

work in close proximity to co-workers responsible for prior 

harassment constitutes hostile work environment). 

Moreover, Knabe has presented no evidence that, if a 

proper investigation had been performed, Barnes' response 

_________________________________________________________________ 

remedial action is necessary. Rather, we point out that an employer can 

decide that a complaint is justified even if uncorroborated. On the other 

hand, an employer need not credit a complaint simply because an 

employee makes it. 

 12 
would have been different -- namely, she has not shown 

that Humbrecht would have been reprimanded, suspended, 

or fired. Under these circumstances, even assuming that 

Barnes should have credited Knabe's allegations and

concluded that Humbrecht harassed her, Knabe has not 

established any genuine issues of material fact as to the 

adequacy of Boury's response to her complaint. 

We also reject Knabe's contention that there is a genuine 

issue of material fact as to whether any remedial action 

was taken. According to Knabe, it is unclear from the 

record whether Barnes actually "warned" Humbrecht not to 

engage in further harassment. If Humbrecht was not given 

a warning, the argument continues, then he was completely 

exonerated and no remedial action was taken. See Fuller v.

City of Oakland, 47 F.3d 1522, 1529 (9th Cir. 1995) ("An 

employer whose sole action is to conclude that no 

harassment occurred cannot in any meaningful sense be 

said to have `remedied' what happened. Denial does not 

constitute a remedy. Nor does the fact of investigation alone 

suffice; an investigation is principally a way to determine 

whether any remedy is needed and cannot substitute for 

the remedy itself."). 

In our view, the evidence presented by Knabe points only 

to the conclusion that remedial action was taken by Boury. 

Barnes' record of the conversation between her and 

Humbrecht reports that the company policies respecting 

sexual harassment were "discussed." While Barnes herself 

did not choose the word "warn," we think that informing 

Humbrecht that "any company violations of this policy will 

receive possible suspension and/or termination" was clearly 

a warning and that no reasonable jury would find in

Knabe's favor as to whether the company actually took 

remedial action. 

In reaching these conclusions, we make several 

observations. Although we determine that Boury's remedial 

action was adequate in spite of Barnes' flawed 

investigation, it is also clear that there may be cases in 

which an employer's investigation is so flawed that it could 

not be said that the remedial action was adequate. For 

example, the investigation might be carried out in a way 

that prevents the discovery of serious and significant 

 13 
harassment by an employee such that the remedy chosen 

by the employer could not be held to be reasonably 

calculated to prevent the harassment. An investigation 

must be undertaken, see Swentek v. USAir, 830 F.2d 552, 

558 (4th Cir. 1987) ("In taking remedial action, USAir was 

obliged to investigate Swentek's charges and to present a 

reasonable basis for its subsequent actions."), and an 

employer can be held liable if a faulty investigation renders 

its subsequent remedial action inadequate, i.e., not 

reasonably calculated to prevent further harassment. 

Knabe objects to the remedial action selected by Boury, 

and approved by us here, on the ground that Humbrecht 

should have been transferred from the restaurant orfired. 

We conclude that, if the remedy chosen by the employer is 

adequate, an aggrieved employee cannot object to that 

selected action. Concomitantly, an employee cannot dictate 

that the employer select a certain remedial action. We agree 

with the Seventh Circuit that: "No doubt, from [the

plaintiff's] perspective, [the defendant] could have done 

more to remedy the adverse effects of [the employee's] 

conduct. But Title VII requires only that the employer take 

steps reasonably likely to stop the harassment." Saxton, 10 

F.3d at 535-36. 

From this holding it also follows that taking punitive 

action against the harassing employee, e.g., reprimand, 

suspension or dismissal, is not necessary to insulate the 

employer from liability for a hostile work environment.12 So 

long as the remedy is reasonably calculated to prevent 

future instances of harassment, the company cannot be 

held liable under a negligence theory of agency. Ryczek, 

877 F. Supp. at 760 ("[A]n employer, in order to avoid 

liability for the discriminatory conduct of an employee, does 

not have to necessarily discipline or terminate the offending 

employee as long as the employer takes corrective action 

_________________________________________________________________ 

12. In fact, an employer might be faced with a lawsuit filed by the 

employee allegedly responsible for the harassment if the employer takes 

punitive action without ensuring that adequate grounds exist for the 

action. See, e.g., Hope A. Comisky, "Prompt and Effective Remedial

Action?" What Must an Employer Do to Avoid Liability for "Hostile Work

Environmental" Sexual Harassment?, 8 Lab. Law. 181, 195 (1992). 

 14 
reasonably likely to prevent the offending conduct from 

reoccurring." (citation omitted)). 

We do not, of course, suggest that nonpunitive action will 

be an adequate remedy in all cases.13 Whether a 

nonpunitive remedy is reasonably calculated to end the 

harassment is, to a certain extent, a function of the severity 

and frequency of the harassment, and is a highly factspecific inquiry. The more severe and more frequent the 

harassment, the less likely a nonpunitive remedy will be 

found adequate. But where, as here, the plaintiff has 

presented no evidence that a nonpunitive remedial action 

was not reasonably calculated to end the harassment, 

summary judgment for an employer is appropriate. 

Knabe also contends that the effect of the district court's 

judgment is that a complainant must return to work after 

the remedial action in order to present evidence sufficient 

to create a genuine issue of material fact regarding the 

adequacy of the remedy. According to Knabe, the district 

court's holding implied that she could have withstood 

summary judgment only by presenting evidence that she 

faced a sexually hostile work environment when she 

returned to the workplace. We disagree. Knabe must only 

present enough evidence to show, taking that evidence as 

true, that the remedial action was not "reasonably 

calculated" to prevent further acts of harassment, and even 

a plaintiff who fails to return to work because of 

dissatisfaction with the remedial action chosen by the 

employer can make this showing. 

The question whether a chosen remedy was reasonably

calculated to prevent further acts of harassment can be 

answered at the time that remedy is put into place. While 

evidence that an employee returned to a hostile 

environment after the remedial action is certainly helpful to 

a plaintiff's case, it is not necessary for resolving whether, 

at the time it was carried out, the employer's response was 

reasonably calculated to end the harassment. Moreover, the 

rule that a plaintiff must show that the remedy was not 

_________________________________________________________________ 

13. Indeed, Boury's own counsel conceded at oral argument that a 

warning would not be an adequate remedy in a situation in which an 

employee alleged that she was raped by another employee. 

 15 
reasonably calculated to prevent further acts of harassment 

prevents a different, but no less unfortunate, result: it 

makes clear that a plaintiff cannot survive summary

judgment merely by failing to return to his or her job after 

the remedial action at issue is taken.14 

The judgment of the district court will be affirmed. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________ 

14. Knabe also relies on language in Bouton that "an effective grievance 

procedure--one that is known to the victim and that timely stops the 

harassment--shields that employer from Title VII liability for a hostile 

environment." 29 F.3d at 110. Based on this language, she contends 

that, because there is an issue of fact as to whether Knabe knew about 

the grievance procedure, see supra p. 5, she has presented sufficient 

evidence to withstand summary judgment with respect to whether Boury 

was negligent in carrying out the remedial action. We disagree. While 

employers would be well advised to ensure clear and permanent notice 

of its sexual harassment policy and grievance procedure, the language 

from Bouton suggests only one way in which an employer can escape 

negligence liability for a sexually hostile work environment created by an 

employee. So long as the remedial action taken is prompt and adequate, 

it is not necessary that the plaintiff have previous knowledge of a sexual 

harassment grievance procedure for the employer to be entitled to 

summary judgment. 

 16