1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-17-1997

Bonenberger v. Plymouth Twp

Precedential or Non-Precedential:

Docket 97-1047

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Recommended Citation

"Bonenberger v. Plymouth Twp" (1997). 1997 Decisions. Paper 276.

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Filed 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 Township 
 L. 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, Plymouth 

Township, located in Pennsylvania; the Plymouth Township 

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 requires us to 

decide whether a police officer acts under "color of state 

law" for purposes of 42 U.S.C. S 1983 when he sexually 

harasses a co-employee whose work shift he supervises, 

even if he is not her official supervisor and lacks authority 

to hire or fire her. We must also apply our precedent in 

Title VII sexual harassment cases, reaffirming the 

established distinction between quid pro quo and hostile 

work environment claims. For the reasons set forth below, 

we will reverse in part and affirm in part the district 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 employment, 

Sergeant Joseph La Penta regularly accosted her at work 

with obscene remarks and unwelcome sexual advances.

She also claims that La Penta frequently fondled her 

breasts or pinched her buttocks while she attempted to 

complete work assignments. She contends that this ongoing 

harassment occurred in the presence of police employees 

and that management-level personnel became aware of La 

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

months did nothing to curtail it. Bonenberger adds that 

although she consistently rejected La Penta's advances, the 

harassment persisted, driving her to resign her position as 

dispatcher on April 11, 1994. 

The parties agree that although La Penta did not hire 

Bonenberger and was not her official supervisor, he

supervised all of the dispatchers, including Bonenberger, 

when no higher-ranking officer was on duty. At such times 

he had sole control over Bonenberger's work environment, 

determining when she and the other dispatchers might take 

a break and which tasks they would perform. Bonenberger 

testified that on one such occasion, he grabbed her

buttocks in the presence of three other law enforcement 

officials. The police department's own independent 

investigation confirms that this incident occurred.

The district court granted defendants summary judgment 

on Bonenberger's claims that (1) La Penta, individually 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, discipline and 

train La Penta violated section 1983 and (3) Plymouth 

Township Police Department contravened Title VII by

permitting La Penta's quid pro quo and hostile work

environment sexual harassment. The district court also 

dismissed Bonenberger's state law claims of intentional 

infliction of emotional distress and battery against 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 supplemental 

jurisdiction over those claims pursuant to 28 U.S.C. S 1367.1 

Reviewing the record de novo, we will reverse the district 

_________________________________________________________________ 

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 district court "must 

decline 

to decide the pendent state claims unless considerations of judicial 

economy, convenience, and fairness to the parties provide an affirmative 

justification for doing so." Borough of West Mifflin v. Lancaster, 45 F.3d 

780, 788 (3d Cir. 1995). 

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

section 1983 claim against La Penta and on her Title VII 

hostile work environment claim against the police 

department. We will affirm the order of summary judgment 

with respect to her section 1983 claim and her claim of 

quid pro quo harassment against the department. 

II. 

A. 

We address first Appellant's section 1983 claim against 

Sergeant La Penta.2 A finding of liability under 42 U.S.C. 

S 1983 "requires that the defendant . . . have exercised 

power `possessed by virtue of state law and made possible 

only because the wrongdoer is clothed with the authority 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 action is 

a threshold issue in any section 1983 case. It erred, 

however, in holding that La Penta's harassment could not 

meet the color of law requirement solely because he "had 

no authority to hire, fire or make any employment decision 

regarding Bonenberger . . . ." Bonenberger v. Plymouth 

Township, No. Civ. A. 96-403, 1996 WL 729034, at *5 (E.D. 

Pa. Dec. 18, 1996). A state employee may, under certain 

circumstances, wield considerable control over a 

subordinate whose work he regularly supervises, even if he 

does not hire, fire, or issue regular evaluations of her work. 

_________________________________________________________________ 

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 subjected, any citizen of the 

 United States or other person within the jurisdiction thereof to 

the 

 deprivation of any rights, privileges, or immunities secured by the 

 Constitution and laws, shall be liable to the party injured in an 

 action at law, suit in equity, or other proper proceeding for 

redress 

 . . . . 

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

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

895 (W.D.N.Y. 1993) (factual dispute about the defendant's 

actual authority precludes summary judgment on section 

1983 sexual harassment claim where plaintiff alleged that 

defendant possessed unwritten authority to influence 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 of 

supervisor, on the one hand, and abuse of state authority 

by one who bears no such title but whose regular duties 

nonetheless include a virtually identical supervisory role, 

on the other.3 

In so holding, we do not suggest that all acts of an onduty state employee are state action for purposes of section 

1983. Although "state employment is generally sufficient to 

render the defendant a state actor," West, 487 U.S. at 50 

(citation omitted), not all torts committed by state 

employees constitute state action, even if committed while 

on duty. For instance, a state employee who pursues purely 

private motives and whose interaction with the victim is 

unconnected with his execution of official duties does 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 contrast, 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 identified 

himself as peace officer, arrested plaintiff and used police 

car). Thus, the essence of section 1983's color of law 

requirement is that the alleged offender, in committing the 

act complained of, abused a power or position granted by 

the state. 

_________________________________________________________________ 

3. It appears that Sergeant La Penta and Sergeant Carbo, Bonenberger's 

official supervisor, performed exactly the same role when they were in 

charge of the dispatchers' shifts. The only appreciable difference between 

their authority over Bonenberger was that Carbo, not La Penta, was 

responsible for submitting written evaluations of her work. While this 

distinction is significant, it does not justify the district court's 

conclusion 

that La Penta exercised no professional authority over Bonenberger. 

 5 
In 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 Milwaukee, 921 F. 

Supp. 583 (E.D. Wis. 1996). See Bonenberger, 1996 WL 

729034, at *3 & n.2. These cases are inapposite. The 

Woodward court determined that the defendant police

officers lacked authority over the plaintiffs, three 

dispatchers, only because the dispatchers worked for a 

private company rather than the police department itself. 

The Woodward court expressly "did not . .. decide whether 

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. Moreover, 

the same court of appeals that decided Woodward later 

noted that "in some instances co-employees may exercise 

de facto control over sexual harassment victims such that 

they act under color of law." David v. City of Denver, 101 

F.3d 1344, 1354 (10th Cir. 1996) (section 1983 sexual 

harassment claim may not be dismissed for failure to state 

claim upon which relief may be granted merely because the 

defendants are non-supervisory co-workers). 

We likewise find the district court decision in Rouse v. 

City of Milwaukee, 921 F. Supp. 583, 588 (E.D. Wis. 1996), 

to be inapplicable to the facts of this case. The Rouse 

plaintiffs and the police officer they sued for harassment 

"held the same rank and [the harasser] had no authority to 

give them orders." Id. The plaintiffs in Rouse therefore 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 official rank 

was the same as theirs, had seniority and was generally 

well-connected in the department. Id. Unlike La Penta, the 

defendant in Rouse did not supervise the plaintiffs' work, 

and his seniority afforded him no authority over his 

colleagues' assignments. 

In fact, the circumstances in Rouse stand in stark 

contrast to Sergeant La Penta's direct power to give 

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 

 6 
department's counsel conceded at oral argument, if 

Bonenberger failed to follow his orders, the police

department would view that failure as insubordination 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 departmental 

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 defendant, "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.") (citations 

omitted). If a state entity places an official in the 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 official wields 

sufficient authority to satisfy the color of law requirement of 

42 U.S.C. S 1983. 

To conclude otherwise would be to create a perverse

incentive for government employers to avoid labeling 

workers as supervisors, so as to insulate themselves from 

section 1983 liability. Clearly, an employer should not be 

permitted to evade so easily the statutory protections 

against discrimination. We, therefore, look to substance 

rather than form in determining whether an individual 

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 favor of 

La Penta. 

B. 

Bonenberger also alleges a section 1983 violation by 

Plymouth Township Police Department.4 The district court 

properly concluded that Bonenberger's allegations do not 

create a genuine issue of fact concerning whether the 

township's failure to train, discipline or control La Penta 

_________________________________________________________________ 

4. As in past cases, we treat the municipality and its police department 

as a single entity for purposes of section 1983 liability. See, e.g., 

Colburn 

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

 7 
violated 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 discipline 

only if the Plymouth Police Department was deliberately 

indifferent to the rights of persons with whom he came 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). Deliberate 

indifference exists if the challenged act implements a 

municipal policy, i.e., a "statement, ordinance, regulation, 

or decision officially adopted and promulgated by[a local 

governing] body's officers." Simmons v. City of Philadelphia, 

947 F.2d 1042, 1059 (3d Cir. 1991) (citation omitted). 

Section 1983 liability may also exist if the allegedly 

unconstitutional action reflects "practices of state officials 

. . . so permanent and well settled as to constitute a 

`custom or usage' with the force of law." Id. (citation 

omitted). 

As a result, deficient training may form a basis for 

municipal liability under section 1983 only if " `both 

(1) contemporaneous knowledge of the offending incident or 

knowledge of a prior pattern of similar incidents, and 

(2) circumstances under which the supervisor's inaction 

could be found to have communicated a message of 

approval to the offending subordinate' " are present. 

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 alleged no 

specific inaction by La Penta's supervisors that could be 

interpreted as encouraging his actions. To the contrary, it 

is undisputed that the police department had a policy 

against sexual harassment and that La Penta's regular 

training included education intended to prevent such 

behavior. Therefore, we will affirm the district court'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 hostile work 

environment harassment by the Plymouth Township Police 

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

environment sexual harassment under Title VII, a plaintiff 

must prove 

 (1) the employee suffered intentional discriminati on 

 because of [his or her] sex; (2) the discrim ination 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) the 

 existence of respondeat superior liability. 

Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d 

Cir. 1990). We conclude that the district court erroneously 

granted summary judgment in favor of the department on 

Bonenberger's hostile work environment claim. Specifically, 

we hold that the court erred in finding that Bonenberger 

failed to satisfy the respondeat superior element of 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 either: (1) 

the tort is committed within the scope of employment (i.e., 

the harasser has actual authority over the victim, by virtue 

of his job description); (2) the employer was negligent or 

reckless in failing to train, discipline, fire or take remedial 

action upon notice of harassment; or (3) the offender 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). Thus if the 

employer knew or should have known of the harassment 

and failed to take prompt remedial action, it is liable 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 policy, yet 

she did not file a formal report until shortly before leaving 

the department. La Penta's supervisor, Captain Pettine, 

testified that he learned of the harassment only five days 

before Bonenberger quit, when it was reported by a 

sergeant. He immediately questioned Bonenberger. Upon 

learning that La Penta was the alleged aggressor, Pettine 

informed Chief Cross and questioned La Penta about the 

 9 
reported incidents. Bonenberger left the department a few 

days later, claiming that she could no longer endure La 

Penta's treatment. The department nonetheless continued 

its investigation and despite inconclusive findings, issued 

Sergeant La Penta a letter of reprimand. On the basis of 

this evidence, the district court found no factual dispute 

with respect to Bonenberger's hostile work environment 

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 Title 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 response 

detailed above suggests that the department pursued

appropriate remedial action, the district court disregarded 

evidence suggesting that "management-level employees had 

actual or constructive knowledge about the existence of a 

sexually hostile environment and failed to take prompt 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 that in 

mid-January 1994, La Penta pinched her buttocks in front 

of a group of officers, and that "all of the officers were 

laughing, including Sergeant James Carbo" who was 

"standing next to Sergeant La Penta when the incident 

occurred."5 She also maintains that on April 1, 1994, La 

Penta approached her from behind while she was speaking 

to Sergeant Carbo and slid his hand across her chest. 

According to Ms. Bonenberger, although she told La Penta 

to stop, Carbo merely smiled and did not indicate in any 

way that he disapproved of La Penta's actions. 

Bonenberger also alleges that other management-level 

officials knew she was being harassed almost two months 

before she resigned and chose not to discipline La Penta or 

otherwise curtail the harassment.6 She testified, and the 

_________________________________________________________________ 

5. Reproduced Record, Volume I, at 184. 

6. Bonenberger resigned from her position as dispatcher on April 11, 

1994. The incident when La Penta grabbed her buttocks in front of three 

other police officers allegedly occurred on February 13, 1994. 

 10 
township's investigation confirmed, that on February 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 the 

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 policy also 

applied to dispatchers. Bonenberger claims that this is 

evidence that the department had become aware of La

Penta's actions and, as a result, amended and redistributed 

its policy on harassment. Certainly, one might reasonably 

question whether an employer's simple reissuance of an 

existing sexual harassment policy is an appropriate

remedial action, particularly when the employer knows 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 by 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 liability for 

hostile environment sexual harassment. But this would be 

true only if that policy contained an effective grievance 

procedure. See Bouton, 29 F.3d at 110 ("[A]n effective 

grievance procedure -- one that is known to the victim and 

that timely stops the harassment -- shields the employer 

from Title VII liability for a hostile work environment."). In 

_________________________________________________________________ 

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 take prompt and 

appropriate remedial action, if proven at trial, gives 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 law with having, a duty 

to pass on the information to someone within the company who has the 

power to do something about it; or (2) come[s] to the attention of such a 

someone."). 

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

policy did not specify a grievance procedure.8 Since, as 

previously noted, there exists a genuine dispute of material 

fact as to whether the department's remedial efforts were 

otherwise adequate, we must reverse. 

IV. 

Bonenberger also alleges that she suffered quid pro quo 

sexual harassment. We recently held that "[u]nwelcome 

sexual advances, requests for sexual favors, and other 

verbal or physical conduct of a sexual nature constitute 

[quid pro quo] sexual harassment when (1) submission to 

such conduct is made either explicitly or implicitly a term 

or condition of an individual's employment [or] (2)

submission to or rejection of such conduct by an individual 

is used as the basis for employment decisions affecting 

such individual . . . ." Robinson v. City of Pittsburgh, 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 alleged in 

her complaint satisfy this definition. First, La Penta 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 the rules." 

Bonenberger attempts to characterize this as a veiled threat 

to have her fired for rejecting his sexual advances. Second, 

she claims La Penta's behavior effectively conditioned her 

continued employment upon her willingness to endure a 

_________________________________________________________________ 

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 Department will not 

tolerate sexual harassment of any type." Plymouth Township Police 

Department, General Order D-137, dated March 1, 1994, at 1. The 

second section, "Policy" adopts the EEOC's definition of sexual 

harassment, directs employees to refrain from engaging in such 

harassment, states that complaints must be investigated, and indicates 

that those who violate the policy will be disciplined. 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. 

 12 
sexually-charged hostile work environment. Neither of these 

theories alleges a claim of quid pro quo sexual harassment. 

Although Bonenberger claims that she viewed La Penta's 

warning about sick leave as a threat that La Penta would 

seek to have her fired, she conceded at her deposition 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 the 

harasser have authority to carry out the quid pro quo 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 promotion 

discussion that he expected her to have sexual relations 

with him); Craig v. Y & Y Snacks, 721 F.2d 77, 80 (3d Cir. 

1983) (plaintiff 's dismissal for refusing sexual advances of 

supervisor with plenary authority over employment 

decisions was quid pro quo harassment). In this case, 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 if"the 

consequences attached to an employee's response to the 

sexual advances [are] sufficiently severe to alter the 

employee's compensation, terms, conditions or privileges of 

employment." Robinson, 120 F.3d at 1296-97. La Penta's 

statement that abusing the department's sick leave policy 

could cause her dismissal in no way changed the terms and 

conditions of Bonenberger's employment, because she had 

always been subject to dismissal for improperly failing to 

report for work. Further, La Penta did not suggest, either by 

word or action, that sexual favors were the price for keeping 

her job. Therefore, we hold that the district court properly 

concluded that no quid pro quo threat existed on this 

record. 

Bonenberger also presents a novel argument that 

constructive discharge due to a hostile work environment 

may provide the "quid" in a claim of quid pro quo sexual 

harassment under Title VII. She argues that in her case, La 

Penta's actions effectively made enduring his harassment a 

condition of keeping her job. This reasoning confuses the 

elements of quid pro quo and hostile work environment 

 13 
harassment. Sex discrimination results in constructive 

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 Office 

Systems Co., 747 F.2d 885, 887-88 (3d Cir. 1984). 

Although Bonenberger has alleged facts sufficient to survive 

summary judgment on her claim of constructive discharge 

due to a hostile work environment, this alone is not enough 

to make out a claim for quid pro quo harassment. In this 

case, there is no quo for the alleged quid of enduring the 

hostile work environment. As noted above, quid pro quo 

harassment requires a direct conditioning of job benefits 

upon an employee's submitting to sexual blackmail, or the 

consideration of sexual criteria in work evaluations. In the 

absence of evidence that the employer intended to force the 

plaintiff 's resignation, constructive discharge cannot form 

the basis for quid pro quo sexual harassment.9 While the 

line between quid pro quo and hostile work environment 

harassment is not always clear and the elements present in 

one case sometimes may give rise to both types of claims, 

such is not the case here. We therefore reject Bonenberger'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 court's 

order granting summary judgment with respect to 

Bonenberger's Title VII claim of quid pro quo sexual 

harassment and her section 1983 claim against Plymouth 

Township. With regard to all other claims, we will vacate 

the district court's order granting summary judgment and 

remand for further proceedings consistent with this opinion.10 

_________________________________________________________________ 

9. We do not decide whether constructive discharge, combined with 

evidence that the employer sought to force a resignation, 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, this decision was 

well within the district court's discretion. 

 14 
On remand, the district court is directed to reinstate 

plaintiffs' state law claims. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 15