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. e du/thir dc ir c uit_1997/276Filed December 17, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-1047

CHERYL BONENBERGER,

Appellant,

v.

PLYMOUTH TOWNSHIP; JOSEPH LA PENTA, SERGEANT,

PLYMOUTH TOWNSHIP POLICE DEPARTMENT

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 96-cv-00403)

ARGUED SEPTEMBER 25, 1997

BEFORE: COWEN, ROTH, and LEWIS, Circuit Judges.

(Filed December 17, 1997)

William L. McLaughlin, Jr.
(ARGUED) 23 South Valley Road
Post Office Box 494 Paoli, PA 19301

Attorney for Appellant

George H. Knoell, III (ARGUED) Kane, Pugh, Knoell & Driscoll

510 Swede Street Norristown, PA 19401

Attorney for Plymouth TownshipL. Rostaing Tharaud (ARGUED)

Marshall, Dennehey, Warner, Coleman & Goggin

1845 Walnut Street Philadelphia, PA 19103

Attorney for Joseph La Penta

OPINION OF THE COURT

LEWIS, Circuit Judge.

Appellant Cheryl Bonenberger brought this sexual harassment suit against her former employer, Plymou th Township, located in Pennsylvania; the Plymouth Tow nship Police Department; and against Sergeant La Penta, a police department employee. She has asserted claims under both Title VII and 42 U.S.C. S 1983. This appeal require s us to decide whether a police officer acts under "color o f state law" for purposes of 42 U.S.C. S 1983 when he sexua lly harasses a co-employee whose work shift he supervis es, even if he is not her official supervisor and lacks authority to hire or fire her. We must also apply our precede nt in Title VII sexual harassment cases, reaffirming the established distinction between quid pro quo and ho stile
work environment claims. For the reasons set forth below, we will reverse in part and affirm in part the dist rict court's order of summary judgment dismissing Bonenberger's allegations.

I.

Bonenberger worked as a dispatcher for the Plymouth Township Police Department from about February 1993 to April 11, 1994. She alleges that during her employm ent, Sergeant Joseph La Penta regularly accosted her at work
with obscene remarks and unwelcome sexual advances. She also claims that La Penta frequently fondled he r breasts or pinched her buttocks while she attempted to complete work assignments. She contends that this o ngoing harassment occurred in the presence of police emplo yees and that management-level personnel became aware of La

2Penta's conduct in January 1994, but for nearly thr ee

months did nothing to curtail it. Bonenberger adds that although she consistently rejected La Penta's advan ces, the harassment persisted, driving her to resign her pos ition as dispatcher on April 11, 1994.

The parties agree that although La Penta did not hi re Bonenberger and was not her official supervisor, he supervised all of the dispatchers, including Bonenb erger, when no higher-ranking officer was on duty. At such times he had sole control over Bonenberger's work environ ment, determining when she and the other dispatchers migh t take a break and which tasks they would perform. Bonenbe rger testified that on one such occasion, he grabbed her buttocks in the presence of three other law enforce ment officials. The police department's own independent investigation confirms that this incident occurred.

The district court granted defendants summary judgm ent on Bonenberger's claims that (1) La Penta, individu ally and in his official capacity, deprived her of the right to equal protection in violation of 42 U.S.C. S 1983 and the Fourteenth Amendment; (2) Plymouth Township Police Department's failure properly to control, disciplin e and train La Penta violated section 1983 and (3) Plymou th Township Police Department contravened Title VII by permitting La Penta's quid pro quo and hostile work
environment sexual harassment. The district court a lso dismissed Bonenberger's state law claims of intenti onal infliction of emotional distress and battery agains t La Penta, and her claim against the police department under the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. S 951 et seq. (1991), declining to exercise supplem ental jurisdiction over those claims pursuant to 28 U.S.C . S 1367.1 Reviewing the record de novo, we will reverse the d istrict

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1. 28 U.S.C. S 1367(c)(3) permits a district court to "decline to exercise supplemental jurisdiction over a [state law] claim . . . if [it] has
dismissed all claims over which it has original jurisdiction .. . ." Moreover, where federal claims are dismissed before trial, the dist rict court "must
decline to decide the pendent state claims unless considera tions of judicial economy, convenience, and fairness to the parties p rovide an affirmative justification for doing so." Borough of West Miffli n v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995).

3court's order of summary judgment on Bonenberger's

section 1983 claim against La Penta and on her Titl e VII hostile work environment claim against the police department. We will affirm the order of summary jud gment with respect to her section 1983 claim and her clai m of quid pro quo harassment against the department.

II.

A.

We address first Appellant's section 1983 claim aga inst Sergeant La Penta.2 A finding of liability under 42 U.S.C. S 1983 "requires that the defendant . . . have exer cised power `possessed by virtue of state law and made po ssible only because the wrongdoer is clothed with the auth ority of state law.' " West v. Atkins, 487 U.S. 42, 49 (1988 ) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)) . See also Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993)

.

The district court correctly concluded that state a ction is a threshold issue in any section 1983 case. It erre d, however, in holding that La Penta's harassment coul d not meet the color of law requirement solely because he "had no authority to hire, fire or make any employment d ecision regarding Bonenberger . . . ." Bonenberger v. Plymo uth Township, No. Civ. A. 96-403, 1996 WL 729034, at *5 (E.D. Pa. Dec. 18, 1996). A state employee may, under cer tain circumstances, wield considerable control over a subordinate whose work he regularly supervises, eve n if he does not hire, fire, or issue regular evaluations o f her work.

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2. Section 1983 provides, in pertinent part,

Every person who, under color of any statute , ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjecte d, any citizen of the United States or other person within the jur isdiction thereof to

the deprivation of any rights, privileges, or im munities secured by the Constitution and laws, shall be liable to th e party injured in an action at law, suit in equity, or other prop er proceeding for

redress

. . . .

42 U.S.C. S 1983 (1996).

4See Poulsen v. City of North Tonawanda, 811 F. Supp . 884,

895 (W.D.N.Y. 1993) (factual dispute about the defe ndant's actual authority precludes summary judgment on sect ion 1983 sexual harassment claim where plaintiff allege d that defendant possessed unwritten authority to influenc e her work evaluations and assignments). There is simply no plausible justification for distinguishing between abuse of state authority by one who holds the formal title o f supervisor, on the one hand, and abuse of state aut hority by one who bears no such title but whose regular du ties nonetheless include a virtually identical superviso ry role,

on the other.3

In so holding, we do not suggest that all acts of a n onduty state employee are state action for purposes o f section 1983. Although "state employment is generally suffi cient to render the defendant a state actor," West, 487 U.S. at 50 (citation omitted), not all torts committed by stat e employees constitute state action, even if committe d while on duty. For instance, a state employee who pursues purely private motives and whose interaction with the vict im is
unconnected with his execution of official duties d oes not act under color of law. Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir. 1995) ("[A]n otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state."). In contr ast, offduty police officers who flash a badge or otherwise purport to exercise official authority generally act under color of law. Rivera v. La Porte, 896 F.2d 691, 696 (2d Cir. 1990) (finding state action existed because offender iden tified himself as peace officer, arrested plaintiff and us ed police car). Thus, the essence of section 1983's color of law requirement is that the alleged offender, in commit ting the act complained of, abused a power or position grant ed by

the state.

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3. It appears that Sergeant La Penta and Sergeant C arbo, Bonenberger's official supervisor, performed exactly the same rol e when they were in charge of the dispatchers' shifts. The only appreci able difference between their authority over Bonenberger was that Carbo, no t La Penta, was responsible for submitting written evaluations of h er work. While this distinction is significant, it does not justify the district court's
conclusion that La Penta exercised no professional authority o ver Bonenberger.

5In holding that Sergeant La Penta's conduct was not

under color of law, the trial court relied heavily on Woodward v. Worland, 977 F.2d 1392 (10th Cir. 1992) and a district court decision, Rouse v. City of Milwauk ee, 921 F. Supp. 583 (E.D. Wis. 1996). See Bonenberger, 1996 W L 729034, at *3 & n.2. These cases are inapposite. Th e Woodward court determined that the defendant police officers lacked authority over the plaintiffs, thre e dispatchers, only because the dispatchers worked fo r a private company rather than the police department i tself. The Woodward court expressly "did not . .. decide w hether an outside third party or co-employee could ever be liable for sexual harassment under [section] 1983 and the Equal Protection Clause." Woodward, 977 F.2d at 1401. Mor eover, the same court of appeals that decided Woodward lat er noted that "in some instances co-employees may exer cise
de facto control over sexual harassment victims suc h that they act under color of law." David v. City of Denv er, 101 F.3d 1344, 1354 (10th Cir. 1996) (section 1983 sexu al harassment claim may not be dismissed for failure t o state claim upon which relief may be granted merely becau se the defendants are non-supervisory co-workers).

We likewise find the district court decision in Rou se v. City of Milwaukee, 921 F. Supp. 583, 588 (E.D. Wis. 1996), to be inapplicable to the facts of this case. The R ouse plaintiffs and the police officer they sued for har assment "held the same rank and [the harasser] had no autho rity to give them orders." Id. The plaintiffs in Rouse ther efore could offer no evidence that the perpetrator acted under color of law when he harassed them on the job. Instead, they alleged only that the accused officer, whose offici al rank was the same as theirs, had seniority and was gener ally well-connected in the department. Id. Unlike La Pen ta, the defendant in Rouse did not supervise the plaintiffs ' work, and his seniority afforded him no authority over hi s colleagues' assignments.

In fact, the circumstances in Rouse stand in stark contrast to Sergeant La Penta's direct power to giv e Bonenberger orders when supervising her work shift. It is undisputed that La Penta could alter her workload whenever he supervised her shift. Indeed, as the

6department's counsel conceded at oral argument, if

Bonenberger failed to follow his orders, the police department would view that failure as insubordinati on for which La Penta properly could begin a disciplinary process that might result in her discharge. Under these circumstances La Penta's role within the department al structure afforded him sufficient authority over Bonenberger to satisfy the color of law requirement of section 1983. C.f. David, 101 F.3d at 1354 (absent some type of state authority on the part of the defendan t, "it is
difficult to establish that the abusive action was perpetrated `under color of state law' rather than as an essentially private act of sexual harassment.") (ci tations omitted). If a state entity places an official in t he position of supervising a lesser-ranking employee and empowers him or her to give orders which the subordinate may not disobey without fear of formal reprisal, that offic ial wields sufficient authority to satisfy the color of law re quirement of

42 U.S.C. S 1983.

To conclude otherwise would be to create a perverse incentive for government employers to avoid labelin g workers as supervisors, so as to insulate themselve s from section 1983 liability. Clearly, an employer should not be permitted to evade so easily the statutory protecti ons against discrimination. We, therefore, look to subs tance rather than form in determining whether an individu al defendant possesses supervisory authority. In doing so here, and for the reasons discussed above, we will reverse the district court's grant of summary judgment in f avor of

La Penta.

B.

Bonenberger also alleges a section 1983 violation b y Plymouth Township Police Department.4 The district court properly concluded that Bonenberger's allegations d o not create a genuine issue of fact concerning whether t he township's failure to train, discipline or control La Penta

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4. As in past cases, we treat the municipality and its police department as a single entity for purposes of section 1983 lia bility. See, e.g.,

Colburn v. Upper Darby Township, 838 F.2d 663, 671 n.7 (3d Cir. 1988).

7violated 42 U.S.C. S 1983 and the equal protection clause of

the Fourteenth Amendment. Section 1983 would impose liability for La Penta's inadequate training and di scipline only if the Plymouth Police Department was delibera tely indifferent to the rights of persons with whom he c ame in contact. See City of Canton, Ohio v. Harris, 489 U. S. 378, 388 (1989) (holding that inadequate police training cannot give rise to mere respondeat superior liability). D eliberate indifference exists if the challenged act implement s a municipal policy, i.e., a "statement, ordinance, re gulation, or decision officially adopted and promulgated by[a local governing] body's officers." Simmons v. City of Phi ladelphia, 947 F.2d 1042, 1059 (3d Cir. 1991) (citation omitte d). Section 1983 liability may also exist if the allege dly unconstitutional action reflects "practices of stat e officials . . . so permanent and well settled as to constitut e a `custom or usage' with the force of law." Id. (cita tion omitted).

As a result, deficient training may form a basis fo r municipal liability under section 1983 only if " `b oth (1) contemporaneous knowledge of the offending inci dent or knowledge of a prior pattern of similar incidents, and (2) circumstances under which the supervisor's inac tion could be found to have communicated a message of approval to the offending subordinate' " are presen t. Freedman v. City of Allentown, 853 F.2d 1111, 1117 (3d Cir. 1988) (quoting Colburn v. Upper Darby Township , 838 F.2d 663, 673 (3d Cir. 1988)). Bonenberger has alle ged no specific inaction by La Penta's supervisors that co uld be interpreted as encouraging his actions. To the cont rary, it is undisputed that the police department had a poli cy against sexual harassment and that La Penta's regul ar training included education intended to prevent suc h behavior. Therefore, we will affirm the district co urt's order granting summary judgment on Bonenberger's section 1983 claim against the department.

III.

We now turn to Bonenberger's allegation under Title VII, in which she claims that she was subjected to hosti le work environment harassment by the Plymouth Township Pol ice

8Department. To make out a prima facie case of hosti le work

environment sexual harassment under Title VII, a pl aintiff
must prove

(1) the employee suffered intentional discri minati on because of [his or her] sex; (2) the discrim ination was pervasive and regular; (3) the discriminatio n detrimentally affected the plaintiff; (4) th e discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability.

Andrews v. City of Philadelphia, 895 F.2d 1469, 148 2 (3d Cir. 1990). We conclude that the district court err oneously granted summary judgment in favor of the department on Bonenberger's hostile work environment claim. Speci fically, we hold that the court erred in finding that Bonenb erger failed to satisfy the respondeat superior element o f the prima facie test. See Bonenberger, 1996 WL 729034, at *8.

Respondeat superior liability exists in connection with a
hostile environment sexual harassment claim if eith er: (1) the tort is committed within the scope of employmen t (i.e., the harasser has actual authority over the victim, by virtue of his job description); (2) the employer was negli gent or reckless in failing to train, discipline, fire or t ake remedial action upon notice of harassment; or (3) the offend er relied upon apparent authority or was aided in commission of the tort by the agency relationship. See Bouton v. BMW of North America, Inc., 29 F.3d 103, 106 (3d Cir. 1994). Thu s if the employer knew or should have known of the harassmen t and failed to take prompt remedial action, it is li able under Title VII. Andrews, 895 F.2d at 1486.

In this case, the police department had a sexual harassment policy in place during the entire period that she worked there, and Bonenberger knew of the polic y, yet she did not file a formal report until shortly befo re leaving the department. La Penta's supervisor, Captain Pett ine, testified that he learned of the harassment only fi ve days before Bonenberger quit, when it was reported by a sergeant. He immediately questioned Bonenberger. Up on learning that La Penta was the alleged aggressor, P ettine informed Chief Cross and questioned La Penta about the

9reported incidents. Bonenberger left the department a few

days later, claiming that she could no longer endur e La Penta's treatment. The department nonetheless conti nued its investigation and despite inconclusive findings , issued Sergeant La Penta a letter of reprimand. On the bas is of this evidence, the district court found no factual dispute with respect to Bonenberger's hostile work environm ent claim because "[d]efendants promptly and adequately responded to Bonenberger's allegations of sexual harassment." Bonenberger, 1996 WL 729034, at *9.

The township's remedial actions insulate it from Ti tle VII liability only if they were "reasonably calculated to prevent further harassment." Knabe v. Boury Corp., 114 F.3d 407, 412 (3d Cir. 1997) (citations omitted). While the r esponse detailed above suggests that the department pursued appropriate remedial action, the district court dis regarded evidence suggesting that "management-level employee s had actual or constructive knowledge about the existenc e of a sexually hostile environment and failed to take pro mpt and adequate remedial action" in violation of Title VII . Andrews, 895 F.2d 1486. Specifically, Bonenberger testified that her official supervisor, Sergeant Carbo, knew about and acquiesced in La Penta's harassment. She stated tha t in mid-January 1994, La Penta pinched her buttocks in front of a group of officers, and that "all of the office rs were laughing, including Sergeant James Carbo" who was "standing next to Sergeant La Penta when the incide nt occurred."5 She also maintains that on April 1, 199 4, La Penta approached her from behind while she was spea king to Sergeant Carbo and slid his hand across her ches t. According to Ms. Bonenberger, although she told La Penta to stop, Carbo merely smiled and did not indicate i n any way that he disapproved of La Penta's actions.

Bonenberger also alleges that other management-leve l officials knew she was being harassed almost two mo nths before she resigned and chose not to discipline La Penta or otherwise curtail the harassment.6 She testified, a nd the

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5. Reproduced Record, Volume I, at 184.

6. Bonenberger resigned from her position as dispat cher on April 11, 1994. The incident when La Penta grabbed her buttoc ks in front of three other police officers allegedly occurred on Februar y 13, 1994.

10township's investigation confirmed, that on Februar y 13,

1994, Sergeant La Penta grabbed her buttocks in the presence of Sergeant Galetti, Officer Obenski, and Officer
McBride. The record shows that a few weeks after th e incident witnessed by Sergeant Galetti, the police department distributed a new version of its sexual harassment policy, which differed from the original policy only in its inclusion of a statement that the polic y also applied to dispatchers. Bonenberger claims that thi s is evidence that the department had become aware of La Penta's actions and, as a result, amended and redis tributed its policy on harassment. Certainly, one might reas onably question whether an employer's simple reissuance of an existing sexual harassment policy is an appropriate remedial action, particularly when the employer kno ws both that harassment is occurring and the name of the employees involved.7 The discrepancy between Bonenberger's version of the facts and that urged b y La Penta, Plymouth Township and Plymouth Police Department, presents an issue of material fact that should
be resolved at trial.

The police department also argues that its written sexual harassment policy insulates it from Title VII liabi lity for
hostile environment sexual harassment. But this wou ld be true only if that policy contained an effective gri evance procedure. See Bouton, 29 F.3d at 110 ("[A]n effect ive grievance procedure -- one that is known to the vic tim and that timely stops the harassment -- shields the emp loyer from Title VII liability for a hostile work environ ment."). In

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7. Since, under the police department's own policy, Sergeants Galetti and Carbo were responsible for investigating complaints of sexual harassment, see note 9, supra, their failure to tak e prompt and appropriate remedial action, if proven at trial, gi ves rise to departmental liability. See Young v. Bayer Corp., 123 F.3d 672 ( 7th Cir. 1997)(Title

VII liability for hostile environment harassment arises when "information [about sexual harassment] either (1) come[s] to the attention of someone who (a) has under the terms of his employment, or ( b) is reasonably believed to have, or (c) is reasonably charged by l aw with having, a duty to pass on the information to someone within the co mpany who has the power to do something about it; or (2) come[s] to t he attention of such a
someone.").

11this case, it is clear that the department's harass ment

policy did not specify a grievance procedure.8 Sinc e, as previously noted, there exists a genuine dispute of material fact as to whether the department's remedial effort s were otherwise adequate, we must reverse.

IV.

Bonenberger also alleges that she suffered quid pro quo sexual harassment. We recently held that "[u]nwelco me sexual advances, requests for sexual favors, and ot her verbal or physical conduct of a sexual nature const itute [quid pro quo] sexual harassment when (1) submissio n to such conduct is made either explicitly or implicitl y a term or condition of an individual's employment [or] (2) submission to or rejection of such conduct by an in dividual is used as the basis for employment decisions affec ting such individual . . . ." Robinson v. City of Pittsb urgh, 120 F.3d 1286, 1296 (3d Cir. 1997) (quoting 29 C.F.R. S 1604.11(a)(1) and (a)(2)).

Bonenberger maintains that two sets of facts allege d in her complaint satisfy this definition. First, La Pe nta told her that she had taken too many sick days, adding "you better -- if you really like this job and you want to stay here, you better start straightening out and conforming to th e rules." Bonenberger attempts to characterize this as a veil ed threat to have her fired for rejecting his sexual advances . Second, she claims La Penta's behavior effectively conditio ned her continued employment upon her willingness to endure a

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8. The department's policy is a two-page statement divided into four sections. The first section, entitled "Purpose," is a paragraph generally emphasizing that "the Plymouth Township Police Depa rtment will not tolerate sexual harassment of any type." Plymouth T ownship Police Department, General Order D-137, dated March 1, 199 4, at 1. The second section, "Policy" adopts the EEOC's definiti on of sexual harassment, directs employees to refrain from engag ing in such harassment, states that complaints must be investig ated, and indicates that those who violate the policy will be disciplin ed. The third section defines the terms "employee" and "sexual harassment ," and offers examples of offending conduct. The final section, " Distribution," indicates that a copy of the policy should be given to all personnel.

12sexually-charged hostile work environment. Neither of these

theories alleges a claim of quid pro quo sexual har assment.

Although Bonenberger claims that she viewed La Pent a's warning about sick leave as a threat that La Penta would seek to have her fired, she conceded at her deposit ion that even when the statement was made, she knew La Penta lacked power to terminate her employment. Title VII quid quo pro sexual harassment generally requires that t he harasser have authority to carry out the quid pro q uo offer
or threat. See Tomkins v. Public Service Electric & Gas Co., 568 F.2d 1044, 1048-49 (3d Cir. 1977) (quid pro quo sexual harassment occurred when supervisor responsible for evaluating plaintiff 's work stated during promotio n discussion that he expected her to have sexual rela tions with him); Craig v. Y & Y Snacks, 721 F.2d 77, 80 ( 3d Cir. 1983) (plaintiff 's dismissal for refusing sexual a dvances of supervisor with plenary authority over employment decisions was quid pro quo harassment). In this cas e, it is undisputed that La Penta could not fire Bonenberger , even assuming he actually threatened to do so.

More importantly, Title VII liability exists only i f"the consequences attached to an employee's response to the sexual advances [are] sufficiently severe to alter the employee's compensation, terms, conditions or privi leges of employment." Robinson, 120 F.3d at 1296-97. La Pent a's statement that abusing the department's sick leave policy could cause her dismissal in no way changed the ter ms and conditions of Bonenberger's employment, because she had always been subject to dismissal for improperly fai ling to report for work. Further, La Penta did not suggest, either by word or action, that sexual favors were the price f or keeping her job. Therefore, we hold that the district court properly concluded that no quid pro quo threat existed on th is

record.

Bonenberger also presents a novel argument that constructive discharge due to a hostile work enviro nment may provide the "quid" in a claim of quid pro quo s exual harassment under Title VII. She argues that in her case, La Penta's actions effectively made enduring his haras sment a condition of keeping her job. This reasoning confus es the elements of quid pro quo and hostile work environme nt

13harassment. Sex discrimination results in construct ive

discharge 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." Goss v. Exxon Offic e Systems Co., 747 F.2d 885, 887-88 (3d Cir. 1984). Although Bonenberger has alleged facts sufficient t o survive summary judgment on her claim of constructive disch arge due to a hostile work environment, this alone is no t enough to make out a claim for quid pro quo harassment. In this case, there is no quo for the alleged quid of endur ing the hostile work environment. As noted above, quid pro quo harassment requires a direct conditioning of job be nefits upon an employee's submitting to sexual blackmail, or the
consideration of sexual criteria in work evaluation s. In the absence of evidence that the employer intended to f orce the plaintiff 's resignation, constructive discharge ca nnot form the basis for quid pro quo sexual harassment.9 Whil e the line between quid pro quo and hostile work environm ent harassment is not always clear and the elements pre sent in one case sometimes may give rise to both types of c laims, such is not the case here. We therefore reject Bone nberger's hybrid legal theory and affirm the district court's order granting summary judgment with respect to her claim of quid pro quo harassment.

For the foregoing reasons, we affirm the district c ourt's order granting summary judgment with respect to Bonenberger's Title VII claim of quid pro quo sexua l harassment and her section 1983 claim against Plymo uth Township. With regard to all other claims, we will vacate the district court's order granting summary judgmen t and remand for further proceedings consistent with this opinion.10

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9. We do not decide whether constructive discharge, combined with evidence that the employer sought to force a resign ation, can ever constitute quid pro quo sexual harassment. Since no such evidence has been presented in this case, we defer resolution of this question for another day.

10. We also reject Bonenberger's argument that the district court erred in permitting Appellees additional time in which to amend their summary judgment motion. Under the circumstances, t his decision was
well within the district court's discretion.

14On remand, the district court is directed to reinst ate

plaintiffs' state law claims.

A True Copy:

Teste:

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

15