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. e du/thir dc ir c uit_1997/116Filed 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 AppellantCAROLE 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 ac tion against Boury Corporation alleging that she was a v ictim of
unlawful sexual harassment in violation of Title VI I 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, Pennsyl vania. Knabe contends that she was subjected to a hostile work environment created by Kevin Humbrecht, one of the restaurant managers. The district court, having con cluded that Boury was not liable as a matter of law for Humbrecht's actions because it took prompt and adeq uate 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 th e light most favorable to Knabe, the non-moving party, beca use 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" t o prevent future acts of harassment, we affirm.1

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1. Knabe makes two other contentions on appeal, bot h of which we reject summarily. First, Knabe contends that the district court erred in granting summary judgment without addressing her"re taliation" claim. Knabe's complaint, however, fails to plead a retali ation count. Second, Knabe contends that the district court erred in rej ecting her constructive discharge claim. We disagree. Knabe's constructive discharge claim, as

2I.

Knabe began working as a waitress at the Elby's Big Boy restaurant on August 6, 1993. According to her affi davit and deposition testimony, over the course of the fo llowing two months, Humbrecht engaged in several acts of se xual harassment. On at least a dozen occasions, he bumpe d into her from behind, rubbed himself against her, or ran his hands over her buttocks at the pie cooler or in oth er behind-the-counter spaces. On one occasion in Septe mber 1993, Knabe showed Humbrecht a broken light in the women's restroom. Several male employees were stand ing just outside, and as Humbrecht and Knabe exited, Humbrecht pretended to pull up his pants and his zi pper in the presence of the other employees. Knabe testifie d that, when she expressed her displeasure after each of th ese incidents, Humbrecht responded "don't take it perso nal."

On September 5, 1993, Knabe fell in the waitress ar ea, causing her skirt to come up and exposing most of h er 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 Kna be 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.

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presented here, is not a separate ground for relief , but rather would factor into the damages (e.g., backpay) available t o Knabe had she prevailed in proving Boury's liability for sexual h arassment. At all events, Knabe has not presented evidence sufficient to sust ain 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 plainti ff has been constructively discharged if "the conduct complaine d 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 ev idence that the remedial action chosen by Boury was lacking, we thi nk it is clear that
Knabe could not meet this test.

3After Knabe had threatened to report his conduct to his

supervisor, Humbrecht removed her from the work sch edule.2 Knabe testified that, throughout her employment, wh enever she had threatened to report him, Humbrecht told he r that "life in the unemployment line" was very unpleasant . Knabe has acknowledged that, except for the restroom epis ode, there were no witnesses to any of Humbrecht's actio ns.

On October 20, 1993, Knabe complained by telephone to Sharon Barnes, who supervised the Monroeville resta urant as well as four other Elby's. Knabe reported the in stances of harassment described above, as well as the fact that she
had been taken off the work schedule when she threa tened 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 sex ual harassment complaint, and also contacted the direct or of Big Boy East and Elby's legal counsel for advice ab out 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 op erations, met with Knabe on October 23, 1993, and Knabe infor med them that she wanted Humbrecht to be discharged or
transferred to another restaurant. Barnes then inte rviewed 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 impr oper statements to Knabe, and that they had never observ ed any inappropriate behavior by a manager in the restaura nt.

At the conclusion of her investigation, Barnes deci ded not to reprimand or otherwise sanction Humbrecht, based on

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2. Boury's version is that Knabe was removed from t he schedule as a disciplinary measure for writing a rude note to Ran dy Gilbert, the manager responsible for scheduling, and for telling Humbrecht how to
run the restaurant.

3. In her affidavit, Knabe stated that, when she re ported the harassment, Barnes said that she "thought Kevin had learned his lesson." Barnes explained in her declaration that Humbrecht had bee n transferred to the Monroeville Elby's because he had engaged in a cons ensual affair with a female subordinate at another Elby's.

4her (mistaken) belief that she could not make afind ing that

an employee had engaged in sexual harassment withou t corroborating testimony. However, she met with Humb recht
and informed him that Knabe was to be returned to t he work schedule immediately. More importantly, Barnes reminded him that the "company does not tolerate an y sexual comments or actions" and that any "company violations of this policy will receive possible sus pension and or termination." Both Barnes and Humbrecht signed a "record of conversation" acknowledging the substanc e of the conversation. Humbrecht also acknowledged that the "procedures were explained to me and I do understan d
them. I will continue to adhere to them."

The next day, October 26, Barnes met with Knabe. Sh e informed Knabe that, because there were no witnesse s to Humbrecht's conduct, she could not conclude that Humbrecht had done anything inappropriate and, henc e, she could not reprimand Humbrecht. Barnes also told
Knabe that she had been restored to the work schedu le,
and that she should call Barnes or certain other me mbers of Elby's management if the conduct recurred. Knabe responded by informing Barnes that she could not re turn to
work because Humbrecht had not been transferred or fired, and that she would pursue her recently filed EEOC c harge. Both Barnes and Knabe signed the record of conversa tion 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 Communication s Board at the restaurant along with the names and ph one numbers of company managers to contact to lodge a complaint. Moreover, the open door policy appeared in the employee handbook. Knabe, however, testified that s he never saw these policies during her employment at t he

restaurant.

In September 1994, Knabe filed a complaint in the District Court for the Western District of Pennsylv ania, alleging that she was a victim of unlawful harassme nt in violation of Title VII of the Civil Rights Act of 1 964, 42 U.S.C. § 2000e et seq., and the Pennsylvania Human Relations Act, 43 Pa. C.S. § 951 et seq. After disc overy,

5Boury moved for summary judgment. The magistrate ju dge

to whom the case was referred filed a report conclu ding that, while there was a genuine issue of material f act as to whether Knabe was subjected to a hostile work environment, Boury could not be held liable as a ma tter of law for Humbrecht's actions because it took prompt and effective remedial action after learning of Humbrec ht's conduct, as required under Andrews v. City of Phila delphia

, 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 dist rict court adopted the magistrate judge's report and granted summary judgment to Boury. On appeal, Knabe contend s that there are genuine issues of material fact that preclude summary judgment in Boury's favor. The standards fo r summary judgment and our standard of review are wel l 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

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4. Summary judgment is proper "if the pleadings, de positions, answers to interrogatories, and admissions on file, together w ith 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 matte r of law." Fed. R. Civ. P. 56(c). Upon a motion for summary judgment, the n on-moving party, to prevail, must "make a showing sufficient to esta blish 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 Co rp. v. Catrett , 477 U.S. 317, 322 (1986). In evaluating whether the non-movi ng party has established each necessary element, we must grant a ll reasonable inferences from the evidence to the non-moving part y. 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 issu e 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), a nd we have appellate jurisdiction over the final order under 28 U.S.C. § 1291.

6employment at the Monroeville Elby's. See Meritor S av.

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 o r abusive work environment.") We have held that, to b ring a
claim for sexual harassment under Title VII because of an intimidating and offensive work environment, a plai ntiff must establish " `by the totality of the circumstan ces, the existence of a hostile or abusive working environme nt 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 enviro nment is found to be hostile, a plaintiff must also show that the conduct creating the hostile work environment shoul d 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 becaus e of his or her sex; (2) the discrimination was pervasive an d regular; (3) the discrimination detrimentally affected the p laintiff; (4) the discrimination would detrimentally affect a rea sonable person of the same sex in that position; and (5) re spondeat 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: whet her Boury can be held liable for Humbrecht's actions.6 In

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5. Employer liability under the Pennsylvania Human Relations Act follows the standards set out for employer liabilit y 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 envir onment claim).

6. The district court concluded that Knabe has esta blished a genuine
issue of material fact as to whether Humbrecht crea ted a hostile work environment. Boury contends that, even if we conclu de that Knabe has presented a genuine issue of material fact on the q uestion whether Boury can be held liable for Humbrecht's alleged ac tions, we should affirm the summary judgment on the ground that Knab e had not presented sufficient evidence to establish the exis tence of pervasive and severe harassment. Because of our disposition of th is appeal, we need not reach that question.

7Vinson , 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. § 20 00e(b), the Court directed that agency principles be used as gu idance 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, und er § 219(1), employers are liable for the torts commit ted 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 super visor has used his or her actual authority over the emplo yee 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 au thority to cloak the plaintiff in an unwelcome atmosphere." Bo uton

, 29 F.3d at 107.

Agency law provides two other theories through whic h a plaintiff can hold an employer liable for sexual ha rassment, which are more appropriate in a sexually hostile wo rk
environment case like Knabe's. Under Restatement § 219(2)(b), employers are liable for their own neg ligence or recklessness: in this context, an employer is liabl e for "negligent failure to discipline or fire, or failur e to take remedial action upon notice of harassment." Bouton , 29 F.3d at 106. And under § 219(2)(d), employers are l iable if the harassing employee "relied upon apparent author ity or

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7. Knabe, therefore, incorrectly asserts that respo ndeat superior liability automatically attaches to the employer when a super visor, who has the authority to hire, fire, and discipline the victim of the harassment,
creates the hostile work environment.

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

the former principle in contending that Boury is li able for the hostile work environment created by Humbrecht.

B.

Knabe submits that there is a genuine issue of mate rial fact whether Boury was negligent or reckless in res ponding to her complaint that Humbrecht harassed her. We ha ve explained that an employer is liable for an employe e's behavior under a negligence theory of agency "if a plaintiff proves that management-level employees had actual o r constructive knowledge about the existence of a sex ually 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 re lieve it of liability.").8 Knabe concedes that Boury cannot be charged with knowledge of Humbrecht's activities until Octo ber 20, 1993, when Knabe complained to Barnes. Thus the question here is whether Boury took prompt and adeq uate action after receiving notice of Humbrecht's allege d actions on October 20, 1993.

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8. Our holding in Bouton that prompt and effective remedial action by an employer will relieve it of liability under a negli gence 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 discus s in the text, a remedial action is adequate if it is reasonably cal culated 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 ha nd, it is possible that an action that proves to be ineffective in sto pping the harassment may nevertheless be found reasonably calculated to prevent future harassment and therefore adequate. Thus, where an e mployer's prompt remedial action is not effective (or, as in this ca se, where the effectiveness of the prompt remedial action cannot be tested), courts may still decide that the action was adequate as a matt er of law. Hence, though Knabe's decision to quit prevents us from de termining whether Boury's remedial action was effective, the question before us is whether there is a genuine issue of material fact as to whe ther that action was adequate.

9Knabe does not challenge the district court's concl usion

that Boury's response to her complaint was prompt. Rather, she focuses on the requirement that a remed ial action must be adequate, and she contends that ther e is a genuine issue of material fact regarding the adequa cy of Boury's actions. According to Knabe, Barnes' invest igation was so flawed that it could not have produced an ad equate remedial action. To support this claim, she has pre sented several pieces of evidence that Barnes' investigati on had significant flaws.

First, she points to certain aspects of Barnes' dep osition testimony. Barnes testified that she believed she c ould not make a finding that an employee had engaged in sexu al
harassment without a witness who could corroborate the complainant's allegations. Accordingly, she believe d that she could not reprimand Humbrecht because there wer e no witnesses to the alleged harassment. In related tes timony,
Barnes also stated that she did not take Knabe's cr edibility into account in investigating the claim. In short, Knabe submits, Barnes would not have reprimanded Humbrech t
because there were no witnesses to the harassment e ven if she found Knabe's complaint to be fully credible.

Knabe also points to Barnes' records of conversatio n, which show that Barnes questioned Humbrecht only ab out
the October 13 incident and not about the other all eged instances of harassment. Similarly, she asked the t hree employees whom she interviewed whether they had eve r 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 inadequ ate,
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

10issue of material fact as to whether the remedial a ction

taken was adequate.9

We disagree. The question before us is not whether the investigation was adequate -- it appears not to hav e been -- but rather whether the remedial action was adequ ate. Even if a company's investigation into complaints o f sexual harassment is lacking, the employer cannot be held liable for the hostile work environment created by an empl oyee under a negligence theory of liability unless the r emedial action taken subsequent to the investigation is als o lacking.10 In other words, the law does not require that inves tigations into sexual harassment complaints be perfect. Rathe r, 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 re asonably calculated to stop Humbrecht's harassment, even vie wing the facts in the light most favorable to Knabe. Alt hough
Barnes testified that she was unable to make afindi ng that harassment occurred or to subject Humbrecht to disciplinary measures without a corroborating witne ss (an incorrect premise), she nevertheless took remedial action.11

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9. Knabe also points to evidence that Humbrecht had been transferred to the Monroeville restaurant because he had engaged i n a consensual affair with an employee he supervised at another re staurant. See supra
n.3. She contends that Barnes' failure to take this information into account in assessing whether Humbrecht harassed Kna be constituted another serious flaw in Barnes' investigation. This contention, however, is based on speculation that Humbrecht had also har assed the employee at his prior post, and Knabe has presented no evide nce of prior sexual harassment claims lodged against Humbrecht. The evi dence regarding
Humbrecht's transfer to the Monroeville restaurant is, therefore,
irrelevant.

10. That said, employers would be well advised to e stablish 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 dete rmining that

11The 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 s exual comments or actions. Any company violations of this policy will receive possible suspension and/or termination ." Moreover, Humbrecht was directed to restore Knabe t o the schedule immediately. The record of the conversatio n between Barnes and Knabe the next day, which was si gned 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, includ ing 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 calcul ated 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 r ights in case of future improper conduct. Knabe has presente d no
evidence that there would have been a hostile work
environment had she returned or that Humbrecht woul d 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 n ot handled perfectly, the plaintiff has presented no e vidence to suggest that Guest Services did anything that would have allowed any harassment to continue."); cf. Konstant opoulos v. Westvaco Corp. , ___ F.3d ___, 1997 WL 222821 (3d Cir. 1997) (rejecting a per se rule that requiring an em ployee to work in close proximity to co-workers responsible f or prior harassment constitutes hostile work environment).

Moreover, Knabe has presented no evidence that, if a proper investigation had been performed, Barnes' re sponse

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remedial action is necessary. Rather, we point out that an employer can decide that a complaint is justified even if uncorr oborated. On the other hand, an employer need not credit a complaint simpl y because an employee makes it.

12would have been different -- namely, she has not sh own

that Humbrecht would have been reprimanded, suspend ed, or fired. Under these circumstances, even assuming that Barnes should have credited Knabe's allegations and concluded that Humbrecht harassed her, Knabe has no t 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 g enuine issue of material fact as to whether any remedial action was taken. According to Knabe, it is unclear from t he record whether Barnes actually "warned" Humbrecht n ot to engage in further harassment. If Humbrecht was not given a warning, the argument continues, then he was comp letely
exonerated and no remedial action was taken. See Fu ller 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 investiga tion alone suffice; an investigation is principally a way to d etermine 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 respect ing
sexual harassment were "discussed." While Barnes he rself did not choose the word "warn," we think that infor ming Humbrecht that "any company violations of this poli cy 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 to ok
remedial action.

In reaching these conclusions, we make several observations. Although we determine that Boury's re medial action was adequate in spite of Barnes' flawed investigation, it is also clear that there may be c ases 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 signific ant

13harassment by an employee such that the remedy chos en

by the employer could not be held to be reasonably calculated to prevent the harassment. An investigat ion must be undertaken, see Swentek v. USAir , 830 F.2d 552, 558 (4th Cir. 1987) ("In taking remedial action, US Air was obliged to investigate Swentek's charges and to pre sent a reasonable basis for its subsequent actions."), and an employer can be held liable if a faulty investigati on renders its subsequent remedial action inadequate, i.e., no t reasonably calculated to prevent further harassment

.

Knabe objects to the remedial action selected by Bo ury, and approved by us here, on the ground that Humbrec ht
should have been transferred from the restaurant or fired. We conclude that, if the remedy chosen by the emplo yer is adequate, an aggrieved employee cannot object to th at 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 hav e done more to remedy the adverse effects of [the employee 's] conduct. But Title VII requires only that the emplo yer take steps reasonably likely to stop the harassment." Sa xton , 10
F.3d at 535-36.

From this holding it also follows that taking punit ive action against the harassing employee, e.g., reprim and, suspension or dismissal, is not necessary to insula te the employer from liability for a hostile work environm ent.12 So long as the remedy is reasonably calculated to prev ent future instances of harassment, the company cannot be held liable under a negligence theory of agency. Ry czek

, 877 F. Supp. at 760 ("[A]n employer, in order to av oid liability for the discriminatory conduct of an empl oyee, does not have to necessarily discipline or terminate the offending employee as long as the employer takes corrective a ction

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12. In fact, an employer might be faced with a laws uit filed by the employee allegedly responsible for the harassment i f the employer takes punitive action without ensuring that adequate grou nds exist for the action. See, e.g. , Hope A. Comisky, "Prompt and Effective Remedial Action?" What Must an Employer Do to Avoid Liabilit y for "Hostile Work
Environmental" Sexual Harassment? , 8 Lab. Law. 181, 195 (1992).

14reasonably likely to prevent the offending conduct from

reoccurring." (citation omitted)).

We do not, of course, suggest that nonpunitive acti on 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 t he severity and frequency of the harassment, and is a highly fa ctspecific inquiry. The more severe and more frequent the harassment, the less likely a nonpunitive remedy wi ll be found adequate. But where, as here, the plaintiff h as presented no evidence that a nonpunitive remedial a ction 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 su fficient to create a genuine issue of material fact regardin g the adequacy of the remedy. According to Knabe, the dis trict court's holding implied that she could have withsto od summary judgment only by presenting evidence that s he faced a sexually hostile work environment when she returned to the workplace. We disagree. Knabe must only present enough evidence to show, taking that eviden ce 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 ca n 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 resolvi ng whether, at the time it was carried out, the employer's resp onse was reasonably calculated to end the harassment. Moreov er, the rule that a plaintiff must show that the remedy was not

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13. Indeed, Boury's own counsel conceded at oral ar gument that a warning would not be an adequate remedy in a situat ion in which an employee alleged that she was raped by another empl oyee.

15reasonably calculated to prevent further acts of ha rassment prevents a different, but no less unfortunate, resu lt: 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

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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 li ability for a hostile environment." 29 F.3d at 110. Based on this languag e, she contends that, because there is an issue of fact as to wheth er 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 proce dure, the language
from Bouton suggests only one way in which an employer can esc ape negligence liability for a sexually hostile work en vironment created by an employee. So long as the remedial action taken is p rompt and adequate, it is not necessary that the plaintiff have previou s knowledge of a sexual harassment grievance procedure for the employer to be entitled to summary judgment.

16