1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-14-1997

Robinson v. City of Pittsburgh

Precedential or Non-Precedential:

Docket 95-3594

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Recommended Citation

"Robinson v. City of Pittsburgh" (1997). 1997 Decisions. Paper 157.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/157
Filed July 14, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 95-3594 

CARMEN L. ROBINSON; NATHANIEL HAWTHORNE, JR., 

Wife and Husband, 

Appellants 

v. 

CITY OF PITTSBURGH, EARL BUFORD, CRAIG B. 

EDWARDS; JAMES N. DICKERSON 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

(D.C. Civil No. 94-1378) 

Argued: January 6, 1997 

Before: GREENBERG, COWEN, and ALITO, Circuit Judges

(Opinion Filed: July 14, 1997) 

SAMUEL J. CORDES (Argued) 

OGG, JONES, CORDES 

 & IGNELZI, L.L.P. 

245 Fort Pitt Boulevard 

Pittsburgh, PA 15222 

 Attorney for Appellants
JACQUELINE R. MORROW 

CITY SOLICITOR 

JOHN G. SHORALL (Argued) 

Assistant City Solicitor 

SUSAN E. MALIE 

Assistant City Solicitor 

City of Pittsburgh 

Department of Law 

313 City-County Building 

Pittsburgh, PA 15219 

 Attorneys for Appellee

OPINION OF THE COURT 

ALITO, Circuit Judge: 

Appellants Carmen Robinson and Nathaniel Hawthorne,

Jr. worked as police officers for appellee City of Pittsburgh 

("the City"). Robinson alleges that she was sexually 

harassed by appellee James Dickerson (her supervisor) and 

that appellees Craig Edwards (an assistant police chief) and 

Earl Buford (the chief of police) knew of the harassment but 

failed to take action to stop it. Robinson asserted a variety 

of claims under both federal and state law against 

Dickerson, Edwards, Buford, and the City. At the close of 

plaintiffs' case, the district court granted defendants' 

motion for judgment as a matter of law on several of 

Robinson's claims. The jury returned verdicts for 

defendants on the claims that remained. In this appeal, 

plaintiffs challenge the grant of judgment as a matter of 

law, a jury instruction, and certain evidentiary rulings. We 

affirm in part, reverse in part, and remand. 

I. 

Robinson began working as a Pittsburgh police officer in 

1990. Hawthorne, her husband, also worked as a police 

officer for the City. In January 1992, Robinson was

assigned to a drug suppression unit commanded by then- 

 2 
Lieutenant Dickerson. Hawthorne worked in the same unit 

until June 1992, and Robinson contends that after he left 

to begin a new assignment, Dickerson began sexually

harassing her. According to Robinson, the harassment 

included unhooking her bra, snapping her bra strap,

touching her hair and ears, telling her "you stink pretty," 

making comments about the size of her breasts, blowing 

her a kiss, asking her out for a drink, touching her leg 

under a table, putting his hands around her waist, 

dropping his keys down the back of her shirt and 

attempting to retrieve them, and describing the position in 

which he and Robinson would have sex if they were to do 

so. Robinson testified that she never acceded to any of 

Dickerson's sexual advances or reciprocated any of his 

sexual remarks and that she made it clear to him that his 

conduct was unwelcome. 

In the fall of 1992, Robinson approached Assistant Chief 

Edwards to inquire about a transfer to the detective bureau 

(which would have been a promotion). Edwards had no

direct supervisory authority over Robinson, but was one of 

two second-in-command officers who reported directly to 

Chief Buford. (App. 89-90; 585-86) Robinson testified that 

she told Edwards that she thought Dickerson "was hitting 

on [her]" and "coming on to [her]." (App. 146-47) She said 

that Edwards advised her to "wait it out" because he 

thought that Chief Buford might be leaving soon for

another job. Edwards reportedly said that Buford might 

take Dickerson with him and that even if Dickerson 

remained, Buford's departure would allow Edwards to

obtain power over Dickerson. (App. 147) Until then,

however, Edwards allegedly told Robinson he could not do 

anything about Dickerson because Buford protected him. 

(App. 147-48) In addition, according to Robinson, Edwards 

told her that Buford would not do anything to help her 

because Dickerson "had done this before" and Buford had 

not done anything following that incident. (App. 148) 

Robinson testified that she believed "waiting it out" was a 

"viable solution" and that she did not tell her husband 

about the harassment or do anything else about it at the 

time. (App. 149)1 

_________________________________________________________________ 

1. In addition to this request, Robinson sought a transfer to the detective 

bureau on several other occasions, but she never succeeded in obtaining 

such a transfer. 

 3 
In May 1993, Robinson wrote a letter to Buford in which 

she asked to meet with him. According to Robinson, her 

original draft of the letter, prepared in March or April 1993, 

stated that Dickerson was "coming on to [her]" and that she 

thought that this was "the reason for [her] now bad

reputation." (App. 168) Robinson recounted that she gave 

the letter to Edwards to look over and that Edwards told 

her that she could not send the letter through the chain of 

command because it was too "specific in detail." According 

to Robinson, Edwards recommended that she "just be 

specific about requesting a meeting." (App. 166-67) The 

original draft was never introduced in evidence. The letter 

that was actually sent to Buford requested a meeting in 

order to discuss "career goals" and "past conflicts" and to 

"seek guidance with future endeavors." The letter made no 

mention of sexual harassment. Upon receipt of the letter, 

Buford returned it to Robinson with a notation that it 

needed to be transmitted through the proper chain of 

command rather than sent directly to him. 

In January 1994, Robinson was detailed to the criminal 

intelligence unit, where her direct supervisor was Sergeant 

William Bochter and her second-line supervisor was Chief 

Buford. In this assignment, neither Dickerson nor Edwards 

possessed any supervisory authority over Robinson. In May 

1994, Robinson met with Edwards, told him she was "fed 

up" with the harassment, and stated her intention to file a 

complaint. She testified that Edwards recommended that 

she file a complaint with the Equal Employment 

Opportunity Commission ("EEOC"). 

A few weeks later, Robinson filed a complaint with 

Bochter, who forwarded it to Buford on May 31, 1994. On 

June 1, 1994, Robinson filed a complaint with the EEOC 

alleging that Dickerson had sexually harassed her, and on 

July 6, 1994, she filed a similar complaint with the Bureau 

of Police Office of Professional Standards ("OPS"). OPS's 

investigation, which was completed in September 1994, 

concluded that probable cause existed to substantiate 

Robinson's claim.2 In October 1994, Robinson stopped 

_________________________________________________________________ 

2. The district court did not allow the OPS report itself to be introduced 

in evidence, but it permitted the investigating officer, Carla Gedman, to 

testify as to her conclusions on the ground that they were admissions by 

a party-opponent and thus not hearsay. 

 4 
reporting for work, and she has not returned to her job 

since that time. She was nonetheless promoted to sergeant 

in February 1995. 

II. 

In August 1994, Robinson and Hawthorne filed suit in 

district court against the City, Buford, Edwards, and 

Dickerson. Under Title VII of the Civil Rights Act of 1964, 

42 U.S.C. § 2000e-2(a), Robinson asserted claims against 

the City for hostile work environment and quid pro quo 

sexual harassment and for retaliation, as well as a claim for 

hostile work environment sexual harassment against 

Dickerson. Under 42 U.S.C. § 1983, she asserted claims, 

based on alleged violations of the Equal Protection Clause, 

against all four defendants. She claimed that all four were 

responsible for unconstitutional sex-based discrimination 

and that all but Dickerson were liable for unlawful

retaliation. In addition, Robinson asserted claims under 

Pennsylvania law for assault, battery, and intentional 

infliction of emotional distress against Dickerson. Robinson 

sought punitive damages on all claims. Hawthorne sued 

Dickerson under Pennsylvania law for loss of consortium. 

Dickerson counter-claimed against Robinson for 

defamation. 

At the close of plaintiffs' case, defendants moved for 

judgment as a matter of law pursuant to Fed. R. Civ. P. 

50(a). The district court granted defendants' motion as to 

the Title VII hostile work environment claim against 

Dickerson because individuals cannot be liable under that 

statute. See Sheridan v. E.I. DuPont de Nemours and Co., 

100 F.3d 1061, 1077-78 (3d Cir. 1996) (en banc). The court 

granted the motion as to all of Robinson's § 1983 claims 

against the City on the ground that there was insufficient 

evidence of an unconstitutional policy or custom. 

Furthermore, with respect to the Title VII retaliation claim 

against the City (and in the alternative with respect to the 

§ 1983 retaliation claim against the City, Buford, and 

Edwards), the court held that Robinson had not shown a 

causal link between her protected activity and any adverse 

employment action. The court granted the motion with 

respect to Robinson's Title VII quid pro quo claim against 

 5 
the City because the court found insufficient evidence that 

a job benefit or detriment was conditioned upon Robinson's 

response to Dickerson's advances or that her response to 

his advances in fact affected a tangible aspect of her 

employment. Moreover, the court granted defendants'

motion as to the § 1983 claims against Buford and Edwards 

on the ground that there was insufficient evidence that 

either was personally involved in any deprivation of 

Robinson's rights (as well as, with respect to the retaliation 

theory, on the alternative ground described above). Finally, 

the court granted the motion as to the intentional infliction 

claim against Dickerson and struck Robinson's demand for 

punitive damages on all claims because there was 

insufficient evidence of outrageous conduct. 

The claims that went to the jury were thus as follows: (1) 

the Title VII hostile work environment claim against the 

City; (2) the § 1983 sex discrimination claim against 

Dickerson; (3) the assault and battery claims against 

Dickerson; (4) Hawthorne's loss of consortium claim against 

Dickerson; and (5) Dickerson's defamation counter-claim. 

The jury returned verdicts for the defense on all of 

plaintiffs' claims, as well as a verdict for Robinson on the 

counter-claim. 

Robinson appeals from the grant of judgment as a matter 

of law on all claims except the Title VII and intentional 

infliction claims against Dickerson.3 In addition, she 

contests certain evidentiary rulings and a jury instruction 

that allegedly affected the jury's rejection of the claims that 

it was permitted to consider. Nothing is at issue in this 

appeal with respect to the defamation counter-claim, the 

assault and battery claims, or the loss of consortium claim. 

We exercise plenary review over the district court's grant 

of judgment as a matter of law. Delli Santi v. CNA Ins. Co., 

88 F.3d 192, 200 (3d Cir. 1996). "Our role is to determine 

_________________________________________________________________ 

3. Robinson's statement of issues includes the question whether the 

court properly granted judgment as a matter of law on what she 

describes as her "claim" for punitive damages, Appellants' Br. at 2, but 

her brief does not mention this issue. She has therefore waived it. 

Pennsylvania v. Dept. of Health and Human Services, 101 F.3d 939, 945 

(3d Cir. 1996). 

 6 
whether the evidence and justifiable inferences most 

favorable to the [non-moving] party [would have] afford[ed] 

any rational basis" for a verdict in favor of the non-moving 

party. Id. (quotation omitted). We exercise plenary review 

over the jury instructions given by the district court in 

order to determine whether, read as a whole, the 

instructions stated the correct legal standard. Miller v.

CIGNA Corp., 47 F.3d 586, 591 (3d Cir. 1995) (en banc). 

Finally, we review the district court's decisions to admit or 

exclude evidence for abuse of discretion, Glass v.

Philadelphia Elec. Co., 34 F.3d 188, 191 (3d Cir. 1994), 

although our review is plenary as to the interpretation or 

application of a legal standard underlying such a decision. 

West v. Philadelphia Elec. Co., 45 F.3d 744, 752 (3d Cir. 

1995). We will not reverse on the basis of an erroneous 

decision to admit or exclude evidence unless the error 

affected a "substantial right" of the aggrieved party. Id. 

III. 

Section 1983 Equal Protection Claim Against Buford,

Edwards, and the City

To prevail on her § 1983 equal protection claim, Robinson 

was required to prove that she was subjected to "purposeful 

discrimination" because of her sex. Keenan v. City of

Philadelphia, 983 F.2d 459, 465 (3d Cir. 1993). Moreover, 

to hold Buford or Edwards liable under § 1983 for such an 

equal protection violation, Robinson was required to prove 

that they personally "participated in violating [her] rights, 

. . . that [they] directed others to violate them, or that [they] 

. . . had knowledge of and acquiesced in [their] 

subordinates' violations." Baker v. Monroe Twp., 50 F.3d 

1186, 1190-91 (3d Cir. 1995). See also Andrews v. City of

Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990). Robinson 

does not contend that either Buford or Edwards personally 

engaged in any discriminatory conduct against her or that 

they directed anyone else to do so. Rather, her argument is 

that Buford and Edwards were aware of and acquiesced in 

Dickerson's sexual harassment. We must thus determine, 

taking Robinson's evidence as true and giving her the 

benefit of all reasonable inferences, what Edwards and 

 7 
Buford knew about the harassment, when they learned

about it, and what, if anything, they did in response. 

A. Robinson does not seek to hold Edwards liable for 

anything that he did or did not do following her May 1994 

complaint. Rather, she contends that she told Edwards in 

1992 that Dickerson was "hitting on [her]" and that

Edwards "acquiesced" in Dickerson's conduct because he 

did not take any action to stop Dickerson but instead told 

Robinson to "wait it out" because Buford and/or Dickerson 

might soon be changing jobs. 

Edwards responds that the jury's verdict for the City on 

Robinson's Title VII hostile work environment claim

conclusively establishes that he cannot be liable under 

§ 1983 for acquiescing in her subjection to a hostile 

environment. If there was no hostile environment in the 

first place, Edwards's argument goes, then he logically 

cannot be liable for knowingly acquiescing in the existence 

of one. We reject this argument because, among other 

things, it ignores the fact that the jury's verdict does not 

necessarily mean that it found that Robinson was not 

subjected to a hostile work environment. Instead, the jury 

might have rejected her Title VII hostile work environment 

claim on the ground that the City had an effective policy 

against sexual harassment. See, e.g., Bouton v. BMW of N.

Am., Inc., 29 F.3d 103, 110 (3d Cir. 1994). 

We agree with Edwards, however, that there was 

insufficient evidence to show that he knew of and 

acquiesced in Dickerson's alleged sexual harassment. It is 

true that the jury could have found that Edwards knew in 

1992 that Dickerson was "hitting on" Robinson and that 

Edwards did not take any action to stop Dickerson's

conduct. But it is undisputed that, while Edwards had a 

higher rank than Dickerson, he possessed no actual 

supervisory authority over him. (App. 1031-32) Regardless 

of whether the evidence presented by Robinson would be 

adequate if Edwards had actual supervisory authority over 

Dickerson, we do not believe that Edwards can be held 

liable under § 1983 for failing to take action to correct the 

behavior of an individual over whom he had no actual 

control. 

 8 
"A defendant in a [§ 1983] action must have personal

involvement in the alleged wrongs." Rode v. Dellarciprete, 

845 F.2d 1195, 1207 (3d Cir. 1988) (emphasis added). See

also, e.g., Andrews, 895 F.2d at 1478 ("there must be some 

affirmative conduct by the supervisor that played a role in 

the discrimination") (citing Rizzo v. Goode, 423 U.S. 362, 

377 (1976)). Our cases have held that "actual knowledge 

and acquiescence" suffices for supervisory liability because 

it can be equated with "personal direction" and "direct 

discrimination by the supervisor." Id. (quoting Rode, 845 

F.2d at 1207). Where a supervisor with authority over a 

subordinate knows that the subordinate is violating

someone's rights but fails to act to stop the subordinate 

from doing so, the factfinder may usually infer that the 

supervisor "acquiesced" in (i.e., tacitly assented to or 

accepted) the subordinate's conduct.4 But where actual 

supervisory authority is lacking, mere inaction, in most 

circumstances, does not reasonably give rise to a similar 

inference. As a general matter, a person who fails to act to 

correct the conduct of someone over whom he or she has 

no supervisory authority cannot fairly be said to have 

"acquiesced" in the latter's conduct. 

General tort principles provide a useful analogy. Unless a 

"master"-"servant" relationship exists, the circumstances in 

which one person may be held liable for a tort committed 

by another are quite limited, see Restatement (Second) of 

Torts §§ 876-878 (1977), and none appears to be applicable 

here. A claim against a "master" based on a tort committed 

by a "servant" bears a resemblance to a § 1983 claim 

against a government supervisor based on a constitutional 

tort committed by a subordinate,5 but a person cannot be 

a "master" unless he or she has "the right to control the 

physical conduct" of the servant. Restatement (Second) of 

Agency § 2(1) (1957). By analogy, we hold that, except 

perhaps in unusual circumstances, a government official or 

employee who lacks supervisory authority over the person 

who commits a constitutional tort cannot be held, based on 

_________________________________________________________________ 

4. See Webster's Third New International Dictionary 18 (1971); Random

House Dictionary of the English Language Unabridged Ed. 13 (1967). 

5. We do not suggest, however, that all rules applicable to the former 

type of claim may be applied by analogy to the latter. 

 9 
mere inaction,6 to have "acquiesced" in the unconstitutional 

conduct. 

Here, it is clear that Edwards did not control or have the 

right to control Dickerson's physical conduct in the 

performance of his job, and Edwards is thus not liable for 

Dickerson's conduct.7 Accordingly, we affirm the district 

_________________________________________________________________ 

6. Of course, if the government official or employee had sufficient 

personal involvement in the constitutional tort, he or she may be held 

liable. In this context, the rules set out in §§ 876 and 877(a) of the 

Restatement (Second) of Torts provide useful guidance. Section 876 

states: 

For harm resulting to a third person from the tortious conduct of 

another, one is subject to liability if he 

(a) does a tortious act in concert with the other or pursuant to a 

common design with him, or 

(b) knows that the other's conduct constitutes a b reach of duty 

and gives substantial assistance or encouragement to the other so 

to conduct himself, or 

(c) gives substantial assistance to the other in a ccomplishing a 

tortious result and his own conduct, separately considered, 

constitutes a breach of duty to the third person. 

Section 877(a) provides: 

For harm resulting to a third person from the tortious conduct of 

another, one is subject to liability if he 

(a) orders or induces the conduct, if he knows or should know of 

circumstances that would make the conduct tortious if it were his 

own . . . . 

7. All of our prior cases discussing the issue of supervisory liability for 

"acquiescence" involved defendants who had actual authority to control 

the conduct of the person alleged to have violated the plaintiff's rights. 

Our decision here is thus fully consistent with our holdings in those 

cases. 

For example, in Baker, 50 F.3d at 1193-94, we held that the officer 

who was in charge of a drug raid could be liable under § 1983 for certain 

allegedly illegal actions taken by the officers under his command where 

there was "sufficient evidence to permit an inference that [the 

commanding officer] knew of and acquiesced in the treatment the 

[plaintiffs] were receiving at the hands of the other officers acting under 

 10 
court's grant of judgment as a matter of law to Edwards on 

Robinson's § 1983 equal protection claim. 

B. Robinson argues that Buford is liable under§ 1983 

for Dickerson's conduct because Buford "took absolutely no 

action to remedy Robinson's situation, and the evidence 

suggests that he thought Dickerson's conduct a joke." 

Appellants' Br. at 22. We disagree, because we are unable 

to find any evidence that Buford had any knowledge of any 

alleged harassment before May 1994. (As with Edwards, 

Robinson does not argue that Buford is liable based on 

anything he did or failed to do following her May 1994 

complaint.) 

Robinson testified that Edwards told her in 1992 that it 

would not serve any purpose for him to forward her 

complaint to Buford because Buford would not take it 

seriously. It seems most doubtful that Edwards's statement 

would have been admissible at trial against Buford, but in 

_________________________________________________________________ 

his supervision." 50 F.3d at 1193. The commanding officer indisputedly 

had the authority to control the conduct of the officers under his 

command. 

In Keenan, 983 F.2d at 465-68, the plaintiffs alleged that they were 

transferred in retaliation for protected activity, and the jury agreed. We 

held that four supervisors could be liable under § 1983 where they knew 

of the plaintiffs' protected activity and approved the transfers anyway. Id. 

at 468. We concluded that "the evidence [was] sufficient to establish that 

the plaintiffs were impermissibly disciplined by [the four supervisors] for 

conduct that constituted protected activity." Id. Keenan is 

distinguishable because the four supervisors approved the transfers and 

possessed formal authority over their respective subordinates who 

recommended the transfers. 

In Andrews, 895 F.2d at 1478-79, the supervisors not only had direct 

authority over the primary harassers but also were personally involved 

in the unconstitutional conduct. We upheld a verdict against one 

supervisor who "personally participated in" and "condoned" the 

harassment perpetrated by other officers under his supervision. As to 

another supervisor, "the man who was ultimately responsible for the 

conduct of the Division," we held that the evidence supported the jury's 

finding that he was aware of the harassment and not only did nothing 

to stop it, but told the plaintiff that "you have to expect this working 

with the guys." Id. at 1479. 

 11 
any event this statement in no way tends to show that 

Buford in fact was aware in 1992 that Dickerson was

sexually harassing Robinson. The uncontradicted evidence 

shows that Buford first learned of Robinson's complaint 

when Bochter told him about it on May 31, 1994. We 

therefore affirm the district court's grant of judgment as a 

matter of law to Buford on Robinson's § 1983 equal 

protection claim. 

C. Our conclusion that Buford is not liable under 

§ 1983 for Dickerson's alleged sexual harassment requires 

us to reject as well Robinson's submission that the City is 

liable under § 1983 for Dickerson's alleged sexual 

harassment. The City, as a municipality, is not liable 

through respondeat superior for the constitutional torts of 

its employees. Monell v. Dept. of Social Services, 436 U.S. 

658 (1978). Municipal liability attaches only "when

execution of a government's policy or custom, whether 

made by its lawmakers or by those whose edicts or acts 

may fairly be said to represent official policy, inflicts the 

injury" complained of. Id. at 694. As we explained in 

Andrews: 

A government policy or custom can be established in

one of two ways. Policy is made when a decisionmaker 

possess[ing] final authority to establish municipal

policy with respect to the action issues an official 

proclamation, policy, or edict. A course of conduct is 

considered to be a "custom" when, though not 

authorized by law, such practices of state officials [are] 

so permanent and well-settled as to virtually constitute 

law. 

895 F.2d at 1480 (quotations omitted) (emendations in 

original). 

Robinson does not argue that the City is liable because 

it maintained a "custom" of permitting sexual harassment. 

Rather, she asserts that the City is liable through Buford, 

who is concededly a policymaker whose conduct is 

attributable to the City. In accordance with our holding 

that Buford is not liable under § 1983 for Dickerson's 

alleged sexual harassment, we conclude that the City 

likewise is not liable under § 1983. We therefore affirm the 

 12 
district court's grant of judgment as a matter of law to the 

City on Robinson's § 1983 equal protection claim. 

IV. 

Title VII Quid Pro Quo Sexual Harassment Claim

Against the City

In addition to claiming that Dickerson's sexual 

harassment created a hostile work environment, Robinson 

alleged that Dickerson engaged in quid pro quo sexual 

harassment, for which the City was liable under Title VII. 

The district court granted judgment as a matter of law for 

the City on this claim, but we hold that Robinson presented 

sufficient evidence to go to the jury on this claim.8 

A. This court has not yet had occasion to consider the 

elements of a quid pro quo claim, but we agree with the 

formulation set out in 29 C.F.R. § 1604.11(a)(1) and (2), 

which provides: 

Unwelcome sexual advances, requests for sexual 

favors, and other verbal or physical conduct of a sexual 

nature constitute 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 individuals. . .. 

See also, e.g., Heyne v. Caruso , 69 F.3d 1475, 1478 (9th 

Cir. 1995); Cram v. Lanson & Sessions, 49 F.3d 466, 473 

(8th Cir. 1995); Karibian v. Columbia University , 14 F.3d 

773, 777 (2d Cir. 1994); Martin v. Nannie and the

_________________________________________________________________ 

8. We reject at the outset defendants' contention that there is no 

evidence that Dickerson ever made a sexual advance to Robinson. The 

record is replete with evidence of implicit sexual advances, so we take 

defendants to mean that only an explicit request for sex qualifies as a 

sexual advance. We disagree. We note simply that the evidence 

previously summarized concerning Dickerson's alleged statements and 

actions would have entitled the jury to find that Dickerson made sexual 

advances to Robinson. 

 13 
Newborns, Inc., 3 F.3d 1410, 1416 (10th Cir. 1993); Lipsett

v. University of Puerto Rico, 864 F.2d 881, 898 (1st Cir. 1988).9 

Under this test, the consequences attached to an 

employee's response to the sexual advances must be 

sufficiently severe as to alter the employee's "compensation, 

terms, conditions, or privileges of employment," 42 U.S.C. 

§ 2000e-2(a)(1), or to "deprive or tend to deprive [him or 

her] of employment opportunities or otherwise adversely 

affect his [or her] status as an employee." 42 U.S.C. 

§ 2000e-2(a)(2). This does not mean that the employee must 

be threatened with or must experience " `economic' or 

`tangible' discrimination." Meritor, 477 U.S. at 64. See also

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). But 

by the same token, not every insult, slight, or 

unpleasantness gives rise to a valid Title VII claim. In 

Meritor, the Supreme Court noted that "not all workplace 

conduct that may be described as `harassment' affects a 

`term, condition, or privilege of employment.' " 477 U.S. at 

67. The Court also suggested that the " `mere utterance of 

an ethnic or racial epithet which engenders offensive 

feelings in an employee' would not affect the conditions of 

employment to [a] sufficiently significant degree to violate 

Title VII." Id. (quoting Rogers v. EEOC, 454 F.2d 234, 238 

(5th Cir. 1971)). Thus, whether in a hostile work 

_________________________________________________________________ 

9. Courts have unanimously held that an employer is strictly liable for 

quid pro quo harassment by a supervisor having actual or apparent 

authority to carry out the threat or promise that is made to the victim. 

See Karibian, 14 F.3d at 777. See also Meritor Sav. Bank, FSB v. Vinson, 

477 U.S. 57, 76 (1986) (Marshall, J., concurring in the judgment) ("every 

Court of Appeals that has considered the issue has held that sexual 

harassment by supervisory personnel is automatically imputed to the 

employer when the harassment results in tangible detriment to the 

subordinate employee"). This rule differs from that which applies in a 

hostile work environment case. See Bouton v. BMW of N. Am., Inc., 29 

F.3d 103, 106-07 (3d Cir. 1994). This distinction has been criticized, 

see, e.g., J. Hoult Verkerke, Notice Liability in Employment Discrimination

Law, 81 Va. L. Rev. 273, 277 (1995), but since the parties here have not 

addressed the issue, we assume that the City would be liable for any 

quid pro quo sexual harassment committed by Dickerson. Cf. Bouton, 29 

F.3d at 106-07 (stating, in a case involving only a hostile environment 

claim, that "[w]ithout the agency relationship, quid pro quo harassment 

would be impossible, so the employer is responsible"). 

 14 
environment case or a quid pro quo case, objectionable 

conduct attributable to an employer is not always sufficient 

to alter an employee's terms, conditions, or privileges of 

employment and is thus not always sufficient to violate 

Title VII. 

Subsections (1) and (2) of 29 C.F.R. § 1604.11(a) differ in 

that subsection (1) addresses cases in which an employee 

is told beforehand that his or her compensation or some 

other term, condition, or privilege of employment will be 

affected by his or her response to the unwelcome sexual 

advances, whereas subsection (2) addresses cases in which 

the employee's response to sexual advances is thereafter 

used as a basis for a decision concerning compensation, 

etc. Under subsection (1), a quid pro quo violation occurs 

at the time when an employee is told that his or her 

compensation, etc. is dependent upon submission to 

unwelcome sexual advances. At that point, the employee 

has been subjected to discrimination because of sex. (This 

is so, of course, because, if the employee had been a 

member of the opposite sex, his or her compensation, etc. 

presumably would not have been made dependent on 

submission.) Whether the employee thereafter submits to or 

rebuffs the advances, a violation has nevertheless occurred. 

Like the Second Circuit, we "do not read Title VII to punish 

the victims of sexual harassment who surrender to 

unwelcome sexual encounters. . . . The supervisor's

conduct is equally unlawful under Title VII whether the 

employee submits or not." Karibian, 14 F.3d at 778.10 

Similarly, there is a violation under subsection (1) even if 

the employee rebuffs the advances and his or her 

compensation, terms, conditions, or privileges of 

employment are not in fact altered, i.e., even if the 

supervisor does not follow through on his or her threat. The 

threat is sufficient to constitute "discriminat[ion] . . . with 

_________________________________________________________________ 

10. Whether the employee "submi[tted] to the supervisor's advances is 

certainly relevant" because it bears on "the issue whether the sexual 

advances were unwelcome, not whether unwelcome sexual advances 

were unlawful." Karibian, 14 F.3d at 779. In this case, it is undisputed 

that Robinson refused to submit to Dickerson's alleged advances, and it 

is clear that the jury would have been entitled tofind that the advances 

were unwelcome. 

 15 
respect to . . . compensation, terms, conditions, or 

privileges of employment, because of . . . sex." 11 42 U.S.C. 

§ 2000e-2(a)(1). But see Gary v. Long, 59 F.3d 1391, 1396 

(D.C. Cir. 1995). 

Under subsection (2), a plaintiff must make a showing 

that differs significantly from that required under

subsection (1). Under subsection (2), the plaintiff must 

show that his or her response to unwelcome advances was 

subsequently used as a basis for a decision about 

compensation, etc. Thus, the plaintiff need not show that 

submission was linked to compensation, etc. at or before 

the time when the advances occurred. But the employee 

must show that his or her response was in fact used

thereafter as a basis for a decision affecting his or her 

compensation, etc. 

B. Robinson contends that Dickerson linked her 

response to his advances to the job detriments of "a bad 

reputation at work" and "unjust reprimands." Appellants' 

Br. at 28-29. Robinson explains that "[m]any times after 

Robinson would reject him, Dickerson unjustifiably 

reprimanded her in a very harsh manner and in front of 

other officers; he continuously bothered her at work, even 

when she was not under his direct command; he phoned 

her at home and work for reasons unrelated to police 

business; and he made negative comments to her regarding 

her work and her marriage." Appellants' Br. at 29 (citations 

omitted). 

We are not persuaded that these alleged actions, even 

when taken together, rose to the level of conduct affecting 

Robinson's "compensation, terms, conditions, or privileges" 

of employment. Formal reprimands that result in a notation 

in an employee's personnel file could be sufficiently 

concrete, but harsh words that lack real consequences are 

not. See Meritor, 477 U.S. at 67. 

We reach a different conclusion with respect to 

Robinson's allegation that Dickerson blocked her transfer to 

the detective bureau because she refused to accede to his 

_________________________________________________________________ 

11. The fact that no adverse action was taken is of course relevant to the 

question whether a threat or promise was made. 

 16 
advances. The record before us would certainly permit the 

conclusion that Robinson was denied a transfer to the 

detective bureau (which would have been a promotion) 

because she had performed unsatisfactorily in two 

undercover assignments, because she was unable to accept 

criticism or take direction, or for other valid work-related 

reasons. However, we believe that the record would also 

support a finding that Dickerson refused to recommend her 

transfer because she rebuffed his advances. It is 

undisputed that a supervisor's recommendation weighs 

very heavily in determining who is transferred, so the jury 

could conclude that Dickerson's refusal to recommend 

Robinson cost her the transfer. Accordingly, the evidence 

was sufficient to support a finding of quid pro quo

harassment within the meaning of 29 C.F.R. § 1604.11(a)(2).12 

Robinson testified that Dickerson told her on several 

occasions that he would recommend her for transfer to the 

detective bureau (App. 111, 113-14, 121-22, 142, 160-61), 

but that after a party at which Dickerson touched her leg 

under the table and pulled her into a compromising 

position for a photograph, he responded to her renewed 

inquiry about the transfer by telling her that "he had talked 

to the Chief and he had talked to other detectives, and they 

had all said I had a bad attitude," implying that this was 

the reason she had not been transferred. (App. 143) She 

also testified that, when she spoke to Edwards shortly 

thereafter, he confirmed that Dickerson had "been saying 

bad things about [her] lately to Buford and [him]." (App. 

_________________________________________________________________ 

12. Robinson has not called to our attention any admissible evidence 

that Dickerson explicitly threatened her before or at the time he made a 

sexual advance that her response would affect her "compensation, terms, 

conditions, or privileges" of employment. See 29 C.F.R. § 1604.11(a)(1). 

In light of our conclusion that the evidence is sufficient to show that 

Dickerson in fact did use Robinson's response to his advances as a basis 

for a decision affecting her compensation, etc. within the meaning of 

subsection (2), we need not consider whether the evidence would support 

a finding that Dickerson imposed such a condition "implicitly" before or 

at the time he made the alleged advances within the meaning of 

subsection (1). On remand, the district court should decide whether 

Robinson can proceed to trial based only on the theory of quid pro quo 

harassment set out in 29 C.F.R. § 1604.11(a)(2) or whether she can rely 

on 29 C.F.R. § 1604.11(a)(1) as well. 

 17 
145) When she asked Edwards how she should deal with 

that and told him that "none of it [what Dickerson had been 

saying] was true," he replied, "I know. I know Jim is like 

that. . . . Jimmy thinks he's a lover." (App. 146) Moreover, 

when Robinson asked Edwards why he thought Dickerson 

was saying bad things about her, Edwards said that 

"Dickerson would like to have nothing better than a 23- 

year-old girl like you." (App. 146) Robinson testified that, 

after Dickerson told her again in April 1993 that she would 

be transferred, Edwards "told [her] that he [didn't] know 

why Commander Dickerson said he was going to 

recommend [her], because he [Dickerson] made sure that 

[she] wasn't on that [March 1993 transfer] list." (App. 162) 

We hold that this evidence is sufficient to entitle a 

reasonable factfinder to conclude that Robinson was denied 

a transfer to the detective bureau because she refused 

Dickerson's advances. We believe that, in contrast to minor 

slights like "negative comments," receiving or being denied 

a desired promotion is sufficiently serious and tangible to 

constitute a change in the employee's "terms, conditions, or 

privileges" of employment.13 If the jury finds that Robinson 

was subjected to unwelcome sexual advances and that her 

response to those advances was the basis for Dickerson's 

refusal to recommend her for such a transfer, Robinson will 

have proved that the City, through Dickerson, 

discriminated against her because of her sex with respect 

to the "compensation, terms, conditions, or privileges" of 

her employment. 42 U.S.C. § 2000e-2(a)(1). Accordingly, we 

reverse the district court's grant of judgment as a matter of 

law to the City on Robinson's claim under Title VII for quid 

pro quo sexual harassment.14 

_________________________________________________________________ 

13. Here, although the transfer at issue would have been a promotion, 

Robinson has not directed us to any specific evidence that the transfer 

would have increased her compensation. Paragraph 43 of her complaint 

does allege that a "transfer to the position of detective from the position 

of patrolman . . . is a promotion and carries with it an increase in 

annual compensation . . . ." (App. 27) Moreover, there appears to have 

been a stipulation between the parties with respect to the difference in 

pay between the detective level and the patrolman level. (App. 1310) 

14. The jury returned a verdict for Dickerson on Robinson's claim under 

§ 1983 against Dickerson for discriminating against her because of her 

 18 
V. 

Title VII and § 1983 Retaliation Claims Against the City,

Buford, and Edwards

Robinson contends that, after she filed her complaint 

with the EEOC, she suffered reprisals at work. Section 

704(a) of Title VII, 42 U.S.C. § 2000e-3(a), makes it "an 

unlawful employment practice" for "an employer" to 

"discriminate" against an employee "because he [the

employee] has made a charge, testified, assisted, or 

participated in any manner in an investigation, proceeding, 

or hearing under [Title VII]." Robinson sued the City for 

retaliation under the above-quoted provision of Title VII. 

She also sued Buford and Edwards for retaliation under 

§ 1983, apparently for violating her right, secured by the 

same provision of Title VII, to protest discrimination. 

In Nelson v. Upsala College, 51 F.3d 383 (3d Cir. 1995), 

we set forth the elements of a retaliation claim: 

To establish discriminatory retaliation under Title VII, 

a plaintiff must demonstrate that: (1) she engaged in 

_________________________________________________________________ 

sex, in violation of the Equal Protection Clause. Since this claim was 

allowed to go the jury after the court granted judgment as a matter of 

law on Robinson's quid pro quo and retaliation theories, it would appear 

that this claim was founded upon a hostile work environment theory. It 

is unclear from the record before us whether this claim was also founded 

upon a theory of quid pro quo harassment. If it was, our discussion in 

this section applies equally to it, and it should be tried on remand along 

with Robinson's Title VII quid pro quo claim against the City. (Unlike 

with respect to the § 1983 claims against Buford, Edwards, and the City, 

there is no legal issue regarding Dickerson's personal liability under 

§ 1983.) We of course recognize that federal pleading rules are liberal, 

but it could be unfair for Robinson to assert a claim on remand that she 

did not make clear in the earlier proceedings in the district court. 

Compare Appellants' Br. at 2, 4, 28 (referring to a claim under § 1983 for 

quid pro quo harassment, though apparently only against the City) with

Appellees' Br. at 22 (noting Robinson's references to a purported § 1983 

claim for quid pro quo harassment, but stating that the district court 

"analyzed Robinson's quid pro quo claim under a strict Title VII 

analysis"). We leave it to the district court to determine whether on 

remand Robinson should be permitted to pursue a claim against 

Dickerson under § 1983 on a quid pro quo theory. 

 19 
activity protected by Title VII; (2) the employer took an 

adverse employment action against her; and (3) there 

was a causal connection between her participation in 

the protected activity and the adverse employment 

action. 

Id. at 386 (citations omitted). See also Woodson v. Scott

Paper Co., 109 F.3d 913, 920 (3d Cir. 1997); Kachmar v.

SunGard Data Systems, Inc., 109 F.3d 173, 177 (3d Cir. 

1997); Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 

1085 (3d Cir. 1996); Jalil v. Avdel Corp., 873 F.2d 701, 708 

(3d Cir. 1989) (same); Delli Santi v. CNA Ins. Co., 88 F.3d 

192, 198 (3d Cir. 1996) (same, under New Jersey law). 

It is undisputed that Robinson's EEOC complaint 

constitutes protected activity under Title VII. The district 

court granted judgment as a matter of law to defendants on 

Robinson's retaliation claims on the ground that she had 

not presented evidence that the alleged reprisals were the 

result of the protected activity. (App. 1029) On appeal, 

Robinson argues that the court erred in evaluating her 

evidence of retaliation. She submits that she was subjected 

to the following acts of reprisal due to the filing of her 

EEOC complaint: 

restricted job duties, reassignment and subsequent 

failure to transfer her out of an assignment in which 

she was under the direct command of the alleged 

harasser, and the issuance of several unsubstantiated 

oral reprimands against her. Additionally, she testified 

that after refuting one of his advances, Dickerson 

sometimes would not talk to her, or would make 

unnecessary derogatory comments to her. . . [Moreover, 

she testified that] "Chief Edwards told me that he 

didn't know why Commander Dickerson said he was 

going to recommend me, because he made sure that I 

wasn't on that [transfer] list." 

Appellants' Br. at 27 (citations omitted). 

A. In our view, much of the allegedly retaliatory conduct 

of which Robinson complains, even if her evidence is 

believed, does not give rise to a claim for retaliation. The 

alleged "unsubstantiated oral reprimands" and 

"unnecessary derogatory comments" suffered by Robinson 

 20 
following her complaint do not rise to the level of what our 

cases have described as "adverse employment action." 

Title VII declares that "[i]t shall be an unlawful 

employment practice for an employer to discriminate" 

against an employee "because he has made a charge" of 

discrimination. 42 U.S.C. § 2000e-3(a). Title 42 U.S.C. 

§ 2000e-2(a) makes it an "unlawful employment practice" 

to fail or refuse to hire or to discharge any individual, 

or otherwise to discriminate against any individual

with respect to his compensation, terms, conditions, or 

privileges of employment, because of such individual's 

. . . sex . . . or to limit, segregate, or classify his 

employees . . . in any way which would deprive or tend 

to deprive any individual of employment opportunities 

or otherwise adversely affect his status as an employee, 

because of such individual's . . . sex . . . . 

Retaliatory conduct other than discharge or refusal to 

rehire is thus proscribed by Title VII only if it alters the 

employee's "compensation, terms, conditions, or privileges 

of employment," deprives him or her of "employment 

opportunities," or "adversely affect[s] his [or her] status as 

an employee." It follows that "not everything that makes an 

employee unhappy" qualifies as retaliation, for"[o]therwise, 

minor and even trivial employment actions that `an 

irritable, chip-on-the-shoulder employee did not like would 

form the basis of a discrimination suit.' " Smart v. Ball State

University, 89 F.3d 437, 441 (7th Cir. 1996) (quoting 

Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th 

Cir. 1996)). 

Courts have operationalized the principle that retaliatory 

conduct must be serious and tangible enough to alter an 

employee's compensation, terms, conditions, or privileges of 

employment into the doctrinal requirement that the alleged 

retaliation constitute "adverse employment action." See

Williams, 85 F.3d at 273 (interpreting parallel provisions of 

the Age Discrimination in Employment Act to require

"materially adverse action"); McDonnell v. Cisneros, 84 F.3d 

256, 258 (7th Cir. 1996) ("The language of `materially 

adverse employment action' that some courts employ in 

retaliation cases is a paraphrase of Title VII's basic 

 21 
prohibition against employment discrimination, found in 42 

U.S.C. §§ 2000e-2(a)(1) and (2)."). Accordingly, just as we 

concluded that a quid pro quo plaintiff must show a "quo" 

that is serious enough to alter his or her "compensation, 

terms, conditions, or privileges" of employment, we hold 

that the "adverse employment action" element of a 

retaliation plaintiff's prima facie case incorporates the 

same requirement that the retaliatory conduct rise to the 

level of a violation of 42 U.S.C. § 2000e-2(a)(1) or (2).15 

_________________________________________________________________ 

15. In Nelson v. Upsala College, 51 F.3d 383 (3d Cir. 1995), the plaintiff, 

a former employee of Upsala, contended that Upsala retaliated against 

her by requiring that she obtain prior approval before going onto 

Upsala's campus. We observed that 42 U.S.C. § 2000e-3(a) "interdicts `an 

unlawful employment practice' rather than conduct in general which the 

former employee finds objectionable," id. at 388, and rejected the 

plaintiff's argument on the ground that the allegedly retaliatory action 

"had no impact on any employment relationship that Nelson had, or 

might have in the future." Id. at 389. In Charlton v. Paramus Bd. of

Education, 25 F.3d 194 (3d Cir. 1994), we held that a former employee 

could state a claim for retaliation arising out of post-employment 

conduct, so long as the retaliation affected the plaintiff's future 

employment opportunities. Id. at 200-01. We noted that retaliation 

claims have been permitted "where the retaliation results in discharge 

from a later job, a refusal to hire the plaintiff, or other professional or 

occupational harm." Id. at 200. 

Although the instant case does not require us to resolve the issue, it 

appears from our decisions in Nelson and Charlton that a plaintiff who 

claims that the alleged retaliation prejudiced his or her ability to obtain 

or keep future employment would meet the standard we announce today 

by showing that the retaliatory conduct was related to his or her future 

employment and was serious enough to materially alter his or her future 

employment prospects or conditions. See, e.g., Smith v. St. Louis

University, 109 F.3d 1261, 1266 (8th Cir. 1997) (negative references 

causing potential employers to decline to hire plaintiff constitute 

actionable retaliation); Ruedlinger v. Jarrett , 106 F.3d 212, 214 (7th Cir. 

1997) (providing information to subsequent employer that caused it to 

fire plaintiff constitutes retaliation that "impinge[s] on her `future 

employment prospects or otherwise ha[s] a nexus to employment' ") 

(quoting Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 891 (7th Cir. 

1996)); Passer v. American Chemical Society, 935 F.2d 322, 331 (D.C. 

Cir. 1991) (under parallel provision of the ADEA, holding that 

defendant's retaliatory cancellation of a seminar planned in honor of 

plaintiff gave rise to retaliation claim because the cancellation humiliated 

 22 
We hold that Robinson's allegations that she was 

subjected to "unsubstantiated oral reprimands" and 

"unnecessary derogatory comments" following her 

complaint do not rise to the level of the "adverse 

employment action" required for a retaliation claim. See

Wanamaker v. Columbia Rope Co., 108 F.3d 462, 465-66 

(2d Cir. 1997) ("barring a terminated employee from using 

an office and phone to conduct a job hunt presents only a 

minor, ministerial stumbling block toward securing future 

employment" and thus did not constitute adverse 

employment action under parallel provisions of the ADEA); 

Veprinsky, 87 F.3d at 895 (former employer's subsidizing of 

attorney for an individual sued by plaintiff was "entirely 

unrelated to employment" and resulted in "too intangible" 

adversity to plaintiff and thus could not give rise to a 

retaliation claim); Williams, 85 F.3d at 274 (lateral transfer 

involving small indirect effect on employee's earnings from 

commissions "cannot rise to the level of a materially 

adverse employment action"). See also McDonnell, 84 F.3d 

at 258 (implying in dicta that "anger, irritation, dirty looks, 

even the silent treatment can cause distress" but do not 

constitute materially adverse employment action); Harley v.

McCoach, 928 F. Supp. 533, 541-42 (E.D. Pa. 1996). 

B. In addition, much of what Robinson characterizes as 

retaliation for her EEOC complaint is in fact alleged to have 

occurred before she filed the complaint. What Dickerson 

may have done after Robinson "refut[ed] one of his 

advances" might constitute evidence of a hostile work 

environment or of quid pro quo harassment, but since it 

happened before Robinson filed her complaint, Robinson 

cannot establish a causal connection between her 

complaint and the conduct. What remains of Robinson's 

evidence is essentially as follows: (1) that a co-worker 

named Mona Wallace retaliated against Robinson by 

restricting her computer access during the summer of 1994 

_________________________________________________________________ 

plaintiff in the eyes of his peers "and made it more difficult for him to 

procure future employment"); Sherman v. Burke Contracting, Inc., 891 

F.2d 1527, 1532 (11th Cir. 1990) (retaliation claim proper where 

plaintiff's former employer persuaded plaintiff's new employer to fire 

him). 

 23 
to weekdays, in contrast to Robinson's previously 

unrestricted access; and (2) that the "ten-car memo" written 

by Edwards and sent to Bochter, Dickerson, and Buford 

was a retaliatory attempt to force Robinson to return to 

working under the direct supervision of Dickerson, her 

alleged harasser. Assuming arguendo that Wallace's 

conduct and Edwards's memo constitute "adverse 

employment action," we do not believe that Robinson

demonstrated the required "causal link" between her

complaint and either Wallace's conduct or Edwards's

memo. Aman, 88 F.3d at 198. 

Robinson testified that one Saturday during the summer 

of 1994, she attempted to work on her computer but was 

unable to do so because her authorization had been 

restricted to weekdays. (App. 240) Before that time, 

Robinson had had unrestricted computer access. (App. 240) 

Wallace, who was a co-worker of Robinson's, is not 

implicated in any way in any of the alleged sexual 

harassment. Robinson points to no evidence that anyone 

other than Wallace was involved in the decision to restrict 

her computer access, and she offers no evidence of any sort 

to show that Wallace took this action in retaliation for 

Robinson's complaint. On the contrary, Robinson relies 

merely on a post hoc, ergo propter hoc inference from the 

fact that the restriction was imposed after Robinsonfiled 

her complaint. 

Our cases are seemingly split on the question whether 

the timing of the allegedly retaliatory conduct can, by itself, 

support a finding of causation. Compare Jalil v. Avdel

Corp., 873 F.2d 701, 708 (3d Cir. 1989) (plaintiff 

"demonstrated the causal link . . . by the circumstance that 

the discharge followed rapidly, only two days later, upon 

Avdel's receipt of notice of [his] EEOC claim") with Delli

Santi v. CNA Ins. Co., 88 F.3d 192, 199 n.10 (3d Cir. 1996) 

("timing alone will not suffice to prove retaliatory motive"). 

In Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 

1997), relying on Jalil, we stated in dicta that "temporal 

proximity between the protected activity and the 

termination is sufficient to establish a causal link." On the 

other hand, in Quiroga v. Hasbro, Inc., 934 F.2d 497 (3d 

Cir. 1991), we characterized our statement in Jalil that the 

 24 
"timing of the discharge in relation to Jalil's EEOC 

complaint may suggest discriminatory motives" as the 

holding of that case, and stated that in Jalil "we stopped 

short of creating an inference based upon timing alone." Id. 

at 501 (emphasis added). 

We believe that, if Jalil is to be interpreted as holding 

that timing alone can be sufficient, that holding must be 

confined to the unusually suggestive facts of Jalil. Thus, 

even if timing alone can prove causation where the 

discharge follows only two days after the complaint, the 

mere fact that adverse employment action occurs after a 

complaint will ordinarily be insufficient to satisfy the 

plaintiff's burden of demonstrating a causal link between 

the two events. See Quiroga, 934 F.2d at 501 (holding that, 

"[a]s a matter of fact," the timing of Quiroga's alleged 

constructive discharge was not independently sufficient to 

prove it was caused by his complaint). There is no evidence 

that Wallace's restriction of Robinson's computer access 

followed immediately upon her complaint, so this is thus 

not one of the extraordinary cases where the plaintiff can 

demonstrate causation simply by pointing to the timing of 

the allegedly retaliatory action. Accordingly, we reject 

Robinson's claim that Wallace's action constituted unlawful 

retaliation.16 

_________________________________________________________________ 

16. Because Robinson has failed to present evidence of a causal 

connection between her complaint and Wallace's conduct, Robinson has 

not made out a prima facie case that Wallace's conduct constituted 

retaliation. See, e.g., Aman, 85 F.3d at 1085. Defendants therefore were 

not required to proffer a legitimate, non-discriminatory reason for 

Wallace's conduct. However, they did so, presenting evidence that 

Wallace restricted Robinson's access because Robinson had been 

committing security breaches (for example, by bringing files home) and 

that Wallace took this action entirely on her own. (App. 562-66, 579) If 

defendants were obligated to proffer such an explanation, Robinson 

would then have the burden of presenting evidence from which a 

reasonable jury could conclude either that "the articulated reason is a 

pretext for the retaliation or that a discriminatory reason more likely 

motivated the employer." Delli Santi, 88 F.3d at 199. Robinson has not 

pointed to any implausibilities, inconsistencies, contradictions, 

incoherencies, or the like in Wallace's testimony, see Sheridan, 100 F.3d 

at 1072, and has not even attempted to explain why the jury should 

 25 
A similar analysis applies to the "ten-car memo" written 

by Edwards in June 1994. Before that time, Robinson had 

been assigned to the "ten-car" (a drug suppression vehicle) 

but had been detailed to criminal intelligence where she 

worked under Bochter. Dickerson was in charge of the tencar but had no supervisory authority over the criminal 

intelligence unit. The ten-car memo states that "due to the 

increased activity in the downtown area and with the 

ending of the school year, the need for the extra assistance 

that the ten car provides has increased. Due to these facts, 

effective immediately, all personnel assigned to a ten car is 

[sic] to be immediately informed that they will ride the 

vehicle that they are assigned to." (App. 237) 

Robinson seeks to portray this memo as a pretextual

attempt to force her to work under Dickerson after having 

filed a complaint against him. However, it is undisputed 

that the memo was not applied to Robinson; she remained 

in the criminal intelligence unit from June 1994 (when the 

memo was circulated) until October 1994, when she 

stopped reporting for work. (App. 239-40, 249-50) Again, 

Robinson attempts to link the ten-car memo to her 

complaint simply by pointing to the temporal sequence of 

the two events, but in light of the circumstances noted 

above, this is insufficient. There is consequently no basis 

for a finding that the ten-car memo constituted retaliation 

against Robinson for her complaint of discrimination. 

Robinson's final argument is that the jury would have 

been entitled to return a verdict for her on her retaliation 

claim if it had agreed that she was subjected to a hostile 

work environment. She relies on our statement in Aman

that "an atmosphere of condoned sexual harassment in the 

workplace increases the likelihood of retaliation for 

complaints in individual cases," 85 F.3d at 1086, but that 

_________________________________________________________________ 

disbelieve Wallace. Nor does the record itself suggest any such reason. 

Rather than showing that Wallace was in league with Dickerson or 

management generally, the record in fact reveals that Wallace 

accompanied Robinson to the EEOC as "moral support" when Robinson 

filed her complaint. (App. 560) We therefore hold, in the alternative, that 

Robinson failed to present evidence undermining defendants' proffered 

legitimate, non-discriminatory explanation for the challenged conduct. 

 26 
statement is merely an empirical prediction; it is not a legal 

theory that obviates the presentation of actual evidence of 

retaliation. In Hawkins v. Hennepin Technical Center, 900 

F.2d 153, 156 (8th Cir. 1990), the source of the cited 

statement from Aman, the court held that the plaintiff 

should have been allowed to present evidence of the

defendant's prior acts of sexual harassment, even if those 

acts were not independently actionable, in order to cast 

doubt upon the credibility of the defendant's proffered 

legitimate, non-discriminatory explanation for the allegedly 

retaliatory conduct. Id. at 155-56. In Hawkins, the plaintiff 

had enough evidence of retaliation to get to the jury even 

without the evidence of "condoned sexual harassment," so 

the court's decision cannot be read as upholding the 

argument that Robinson urges upon us here.17 

_________________________________________________________________ 

17. In Glass v. Philadelphia Elec. Co., 34 F.3d 188, 195 (3d Cir. 1994), 

we quoted the Eighth Circuit's statement in Hawkins with approval in 

support of the proposition that evidence that Glass had been subjected 

to racial harassment during a time period for which he received an 

unfavorable performance rating was relevant to show that that rating 

was of questionable validity and thus that the employer's reliance on 

that rating in denying Glass certain promotions was pretextual. 

Therefore, like Hawkins itself, Glass does not support the view that 

evidence that the employer condoned sexual harassment suffices to 

prove the element of the employee's prima facie case requiring a causal 

link between his or her complaint and a subsequent adverse employment 

action. 

In Woodson, we stated that evidence that the employer condoned a 

harasser's conduct can contribute to an inference that subsequent 

adverse employment action taken by the harasser against the plaintiff 

was causally linked to the plaintiff's complaint about the harassment. 

109 F.3d at 922. This observation rests upon the recognition that, if the 

harasser got away with the harassment, it is more likely that he or she 

will believe that retaliation will be safe as well, and conversely, if the 

employer took prompt and adequate action against the harasser, the 

harasser will be less confident of his or her ability to engage in 

retaliation with impunity. In this case, however, Robinson does not 

contend that Dickerson -- the alleged harasser-- took any retaliatory 

action against her. 

In any event, we made it clear in Woodson that this sort of evidence 

was not independently sufficient to support an inference of causation. 

See id. at 921. Whereas Woodson presented other extensive evidence, 

Robinson seeks to rely solely on evidence that Dickerson subjected her 

 27 
In light of the foregoing, we affirm the district court's 

grant of judgment as a matter of law to defendants on 

Robinson's Title VII and § 1983 retaliation claims.18 

VI. 

Jury Instruction on Employer Liability

The district court denied the City's motion for judgment 

as a matter of law as to Robinson's claim under Title VII for 

a hostile work environment, and the jury returned a verdict 

for the City. Robinson contends that this verdict must be 

upset because the court erred in its instruction to the jury 

on the issue of employer respondeat superior liability under 

Title VII for hostile environment sexual harassment.19 As we 

_________________________________________________________________ 

to a hostile work environment and that the City failed to take prompt 

and adequate action to remedy the harassment. If we were to uphold 

Robinson's argument, every employee who succeeds on a hostile 

environment claim would be able to prove a causal link between his or 

her complaint of harassment and any subsequent adverse employment 

action. We do not believe that actual proof of retaliatory motive can be 

dispensed with so easily. 

18. In addition to the grounds described in the text, which apply equally 

to Robinson's Title VII retaliation claim and her§ 1983 retaliation claim, 

we hold that judgment as a matter of law was properly granted in favor 

of Edwards and Buford on Robinson's § 1983 retaliation claim on the 

ground that neither Edwards nor Buford was personally involved in any 

retaliation. See Part III, supra. We also affirm the grant of judgment as 

a matter of law to the City on the § 1983 retaliation claim on the 

additional ground that there was no evidence of a municipal policy or 

custom encouraging or permitting retaliation. See Part III.C, supra. 

19. In order to prevail on a claim under Title VII for a hostile work 

environment based on sex, an employee must prove that: "(1) he or she 

suffered intentional discrimination because of his or her sex; (2) the 

discrimination was pervasive and regular; (3) the discrimination 

detrimentally affected the plaintiff; (4) the discrimination would 

detrimentally affect a reasonable person of the same sex in that position; 

and (5) respondeat superior liability existed." Knabe v. The Boury Corp., 

___ F.3d ____, ____, 1997 WL 282905, *3 (3d Cir.)(citing Andrews, 895 

F.2d at 1482). It is undisputed on appeal that Robinson presented 

sufficient evidence of all five elements to create a jury question. 

 28 
noted in Bouton v. BMW of N. Am., Inc., 29 F.3d 103 (3d 

Cir. 1994), the Supreme Court "has instructed courts to 

use agency principles when deciding employer liability for 

sexually hostile work environments." Id. at 106 (citing 

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986)). 

We explained that: 

The Restatement (Second) of Agency § 219 provides 

three potential bases for holding employers liable for 

sexual harassment perpetrated by their employees. 

Section 219(1) holds employers responsible for torts 

committed by their employees within the scope of their 

employment. . . . [In addition,] [u]nder§ 219(2)(b), 

masters are liable for their own negligence or 

recklessness; in a harassment case, this is typically 

negligent failure to discipline or fire, or failure to take 

remedial action upon notice of harassment. Finally,

under § 219(2)(d), if the servant relied upon apparent 

authority or was aided by the agency relationship, the 

master is required to answer. 

Id. In the instant case, Robinson contended that the City 

should be held liable for Dickerson's alleged harassment on 

the theory that the City had notice of the harassment yet 

failed to take remedial action to put a stop to it. See Knabe

v. The Boury Corp., ___ F.3d ___, ___, 1997 WL 282905, *4 

(3d Cir.) (same). 

The court charged the jury as follows: 

To prove the fifth element [respondeat superior liability 

on the part of the City], wife-plaintiff must prove that 

the City of Pittsburgh was negligent insofar as its

procedure for handling sexual harassment complaints

was not effective. It is important for you, the jury, to 

understand that the City of Pittsburgh may only be 

held liable for the existence of a sexually hostile

working environment that results from its own 

negligence. The City may not be held liable simply 

because one of its employees engaged in sexual 

harassment. 

Thus, if the City of Pittsburgh had an effective 

procedure for handling sexual harassment complaints

at the time of the alleged incidents, the City was not 

 29 
negligent and it cannot be held liable for the improper 

conduct of its employees. 

In order to determine whether the City of Pittsburgh 

was negligent in this case, you must decide whether its 

sexual harassment procedure was effective. A sexual

harassment procedure is effective if it is both known to 

the victim of sexual harassment and its [sic] use of the 

procedure timely stops the harassment. 

(App. 1331-32). Robinson timely objected to this charge 

(App. 1310-11, 1314-15), arguing that "I think we've shown 

evidence where there was not an effective procedure.. . . 

[U]nder the facts of this case you can't presume there was 

an effective procedure, because the procedure required 

Chief Edwards to take action, and he didn't." The court 

responded that it was not, in fact, "presuming" that the 

City had an effective anti-harassment procedure, and stated 

that "[i]t's the jury's job to decide whether it was effective or 

not." (App. 1311) We exercise plenary review over the jury 

instructions in order to determine whether, read as a 

whole, they stated the correct legal standard. Miller v.

CIGNA Corp., 47 F.3d 586, 591 (3d Cir. 1995) (en banc). 

In Bouton, the case upon which the district court relied 

in its jury charge, we held that "under negligence 

principles, prompt and effective action by the employer will 

relieve it of liability." Bouton, 29 F.3d at 107 (emphasis 

added). Robinson argues that the charge based on Bouton

was inappropriate because the complaint in that case did 

end the harassment, while her complaint did not. According 

to Robinson, the court should have based its jury 

instruction on Andrews, a case where the complaint did not 

put a stop to the harassment. Robinson's argument is 

nothing more than a contention that the City's action in 

this case was not "effective." But whether Robinson's 

complaint put a stop to the harassment -- and whether any 

harassment occurred in the first place -- were factual 

issues committed to the jury. The basic problem with 

Robinson's argument is that it challenges the jury's verdict, 

not the court's charge. 

Robinson contends that, even if the City put an end to 

the harassment by transferring Dickerson following her 

 30 
May 1994 complaint, the City should have taken such

action in 1992 when she first spoke to Edwards about 

Dickerson's "hitting on her." But Robinson argued at trial 

that her 1992 conversation with Edwards constituted an 

attempt to avail herself of the City's anti-harassment 

procedure, and that the City failed to respond adequately to 

her complaint. (App. 1405) If the jury had believed that the 

1992 conversation had taken place and that Robinson had 

made it sufficiently clear to Edwards that she was 

complaining about conduct that she perceived as sexual 

harassment, the jury could have held the City liable. That 

it did not do so is not a basis to attack the charge. 

Robinson's argument, both as quoted above in her 

objection to the charge in the district court and on appeal, 

runs more like an argument in favor of judgment as a 

matter of law that the City did not take adequate remedial 

action once it learned of the harassment than a challenge 

to a jury instruction. Robinson did not move for such a 

judgment, however, and it is plain that no such judgment 

would have been warranted in view of the evidentiary 

disputes regarding whether the harassment occurred and 

when the City found out about it. As the district court put 

it, "it's the jury's job to decide whether [the City's antiharassment procedure] was effective or not." We reject 

Robinson's argument that the Bouton charge was 

inappropriate on the facts of her case, because it was for 

the jury in its verdict, not the court in its charge, to decide 

what the facts of this case were.20 

_________________________________________________________________ 

20. After the trial in this case, we decided Knabe v. The Boury Corp., ___ 

F.3d ____, 1997 Wl 282905 (3d Cir.). As noted above, in Bouton we 

articulated the standard as whether the employer's remedial action was 

"effective." See 29 F.3d at 107. In Andrews, we phrased the standard 

somewhat differently, stating that the employer will be liable if its 

remedial action was not "adequate." See 895 F.2d at 1486. If there was 

any conflict between the "adequacy" standard expressed in Andrews and 

the "effectiveness" standard set forth in Bouton, Knabe has resolved it. In 

Knabe, we rejected the plaintiff's argument that an employer is liable 

unless it took remedial action that was actually "effective" to put a stop 

to the harassment in the particular case at hand. We held instead that 

a remedial action is "adequate" if it was "reasonably calculated to 

prevent further harassment," whether or not it actually succeeded in 

doing so. Id. at __, *5 (citations omitted). See also id. at __, *4 n.8. 

Therefore, the charge in this case arguably misled the jury into believing 

that the City's response had to be actually effective. Of course, in view 

of the jury's verdict for the City, no prejudice flowed from this possible 

error. 

 31 
VII. 

After the district court granted defendants' motion for 

judgment as a matter of law on Robinson's quid pro quo 

harassment and retaliation claims, defendants' counsel 

asked the court to remove from the record certain exhibits 

that "were offered with relation to those claims." (App. 

1307). The court then went through the exhibits in 

question with counsel and excluded all but two of them. 

(App. 1308-13) Later, in charging the jury, the court listed 

the claims that it had "disposed of" and told the jury that 

"these claims are of no concern to you. The evidence you 

heard concerning these claims is no longer relevant and 

should not be considered by you." (App. 1326) On appeal, 

Robinson argues that these evidentiary rulings and this 

statement were erroneous because evidence of quid pro quo 

harassment and retaliation, even if it does not concern 

conduct that is serious enough to be independently 

actionable on a quid pro quo or a retaliation theory, may 

nevertheless be relevant to show a hostile work 

environment. These errors, she submits, require reversal of 

the jury's verdict in favor of the City on her Title VII hostile 

environment claim. 

We need not consider this argument, because we do not 

believe that Robinson raised it in the district court. Fed. R. 

Civ. P. 46 requires "that a party, at the time the ruling or 

order of the court is made or sought, make[ ] known to the 

court the action which the party desires the court to take 

or the party's objection to the action of the court and the 

grounds therefor." We conclude that, while Robinson may 

have made a timely objection to the evidentiary exclusions 

that she contests, she at no time made known to the

district court the ground that she now presses in this 

court. 

As noted, the court analyzed each exhibit that defendants 

sought to exclude. For most of the exhibits mentioned 

during that process, plaintiffs' counsel voiced no objection, 

and neither of the two objections that he did raise related 

to the argument described above upon which Robinson now 

relies. First, plaintiffs' counsel objected to the exclusion of 

exhibit 57-X, arguing that it was relevant to undermine the 

credibility of a witness named Gail Payne by showing "her 

 32 
motive in giving testimony the way she did and what she 

said." (App. 1308) The court disagreed, and removed the 

exhibit from the record. Next, counsel argued that exhibit 

78 was relevant to show that the City's response to

Robinson's complaint of harassment was ineffective. (App. 

1310) The court disagreed, stating that the exhibit only 

"has to do with retaliation." (App. 1311) Robinson does not 

renew either of these objections on appeal. After the court 

and counsel had gone through all of the exhibits at issue, 

plaintiffs' counsel stated that "[t]o make the record clear, 

Your Honor, I would just like to for the record, to formally 

object to the Court's ruling based on the Bouton case and 

the evidentiary rulings you just made." (App. 1315) Counsel 

offered no further explanation of the grounds for this 

objection. 

Subsequently, in charging the jury, the court made the 

statement quoted above that Robinson now challenges. 

After completing the jury charge, the court told counsel at 

sidebar that "[n]ow is your opportunity to put exceptions to 

the charge on record." (App. 1348) Plaintiffs' counsel did 

not mention the challenged statement, and did not 

otherwise make known the argument that Robinson now

makes on appeal. 

We therefore conclude that plaintiffs' counsel never gave 

the district court any reason to believe that he was making 

the argument that evidence of quid pro quo harassment 

and retaliation, even if not actionable on those theories, 

was nevertheless relevant to show a hostile work 

environment. Because Robinson did not raise that 

argument in the district court, we decline to consider it on 

appeal.21 

_________________________________________________________________ 

21. Robinson argues that the court erred in refusing to allow her to 

present evidence that the City transferred officers to the detective bureau 

on the basis of nepotism and favoritism, in violation of its written 

policies. We find no error in the district court's ruling that the proffered 

evidence could not give rise to a reasonable inference of discrimination 

because of sex. Finally, Robinson challenges the court's refusal to admit 

the report prepared by the City's Office of Professional Responsibility 

that found that Dickerson had created an "uncomfortable" work 

environment for another woman. The court allowed Robinson to elicit the 

 33 
VIII. 

For the reasons stated in this opinion, we affirm the 

district court's grant of defendants' motion for judgment as 

a matter of law with respect to Robinson's claims under 

§ 1983 against Buford, Edwards, and the City for sex 

discrimination and retaliation and Robinson's claim under 

Title VII against the City for retaliation. We reverse the 

grant of judgment as a matter of law with respect to 

Robinson's claim under Title VII for quid pro quo sexual 

harassment against the City and remand for trial of that 

claim. On remand, the district court should ascertain 

whether Robinson seeks to pursue a claim under § 1983 for 

quid pro quo harassment against Dickerson, and if so, 

whether she should be permitted to do so in light of the 

prior proceedings in this case. See n.14, supra. In all other 

respects, we affirm the district court's rulings and its entry 

of judgment upon the jury's verdict. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________ 

report's conclusions as admissions by the City, but excluded the report 

itself as irrelevant. Robinson contends that the report shows notice to 

the City of Dickerson's alleged harassment of her. We find no error here 

as well. The conduct on the part of Dickerson discussed in the report is 

not his alleged harassment of Robinson, so the report in no way put the 

City on notice that Dickerson was harassing Robinson. 

 34