1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-28-1999

Kunin v. Sears Roebuck & Co

Precedential or Non-Precedential:

Docket 98-1481

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Recommended Citation

"Kunin v. Sears Roebuck & Co" (1999). 1999 Decisions. Paper 113.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/113
Filed April 28, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-1481 

KAREN A. KUNIN 

v. 

SEARS ROEBUCK AND CO., 

 Appellant 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

District Judge: Honorable Clarence C. Newcomer 

(D.C. Civ. No. 97-04580) 

Argued March 26, 1999 

BEFORE: GREENBERG, ROTH, and ROSENN, 

Circuit Judges 

(Filed: April 28, 1999) 

 Timothy M. Kolman 

 Wayne E. Ely (argued) 

 Timothy M. Kolman and 

 Associates 

 225 North Flowers Mill Road 

 Langhorne, PA 19047 

 Attorneys for Appellee 
 L. Rostaing Tharaud (argued) 

 Marshall, Dennehey, Warner, 

 Coleman & Goggin 

 1845 Walnut Street 

 Philadelphia, PA 19103 

 Attorneys for Appellant 

OPINION OF THE COURT 

GREENBERG, Circuit Judge. 

I. INTRODUCTION 

This case requires us to consider the scope of respondeat 

superior liability for hostile work environment claims 

brought under Title VII of the Civil Rights Act of 1964, 42 

U.S.C. S 2000e-2(a)(1). Karen Kunin, an employee at Sears 

Roebuck & Co., alleged that a co-worker had harassed her 

over a three-week period by using sexually derogatory 

language. Kunin did not report the harassment, however, to 

Sears' management until the end of the period, and instead 

during the period only asked her supervisor the general 

question of whether "cursing" was permitted in the 

workplace. Because we conclude that an employee provides 

notice to the employer only when he or she complains 

about sexually offensive conduct, and because Sears had 

neither actual nor constructive notice of the harassment 

until the end of the three-week period, we will reverse the 

district court's denial of Sears' motion for judgment as a 

matter of law and will remand for entry of judgment in 

Sears' favor. 

The district court had federal question jurisdiction over 

Kunin's Title VII sexual harassment claim against Sears 

under 28 U.S.C. S 1331 and 42 U.S.C. S 2000e-5(f)(3). 

Because the district court entered final judgment after a 

jury verdict, we have jurisdiction under 28 U.S.C.S 1291. 

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II. FACTUAL AND PROCEDURAL HISTORY 

A. Factual History 

Kunin worked as a salesperson for Sears at its 

Neshaminy Mall store in Bensalem, Pennsylvania, from 

1987 to 1996. This lawsuit arises from alleged sexual 

harassment that Kunin experienced at that store from a 

fellow employee, Randy Lodato. 

In March 1996, Sears transferred Kunin, at her request, 

to its division 26/46, major appliances. Approximately one 

month later, on April 28, Lodato began to work in the same 

department, where Kunin was the only woman. Kunin 

quickly began to experience problems working with Lodato 

because of his regular use of profanity, which included 

directing the term "fucking bitch" at her personally. She 

testified at trial that Lodato used vulgar language on every 

occasion that she worked with him and was unresponsive 

to her requests to stop his offensive conduct. In one 

instance, Lodato responded to Kunin's complaints by

stating that she "must be virgin ears" and would have to 

grow accustomed to his language or return to her previous 

department. Kunin's fellow employees confirmed at trial 

that Lodato regularly used profanity, and that they had 

witnessed him direct the profanity, including the term 

"fucking bitch," at Kunin. 

Because of Lodato's unresponsiveness, Kunin took the 

opportunity to speak with a supervisor in early May. With 

Lodato following her, Kunin approached her supervisor, 

George Kerper, while he was on the sales floor of her 

department and asked: "is cursing allowed on the sales 

floor?" Kerper, who was working on a computer at the time, 

replied "no," but asked no follow up questions and turned 

his back to Kunin. At that time, Kunin did not inform 

Kerper specifically that Lodato was using vulgar language 

that offended her. 

The conflict between Kunin and Lodato came to a head 

on May 18, 1996, less than two weeks after Kunin had 

approached Kerper on the sales floor. Kunin testified that 

on that day Lodato yelled at her to stop approaching the 

customers in their department, even though she regularly 

had observed male employees doing so. After this 

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disagreement, Kunin witnessed Lodato gesturing to their 

fellow employees. When she inquired about what had been 

said, she learned that Lodato had referred to her as a 

"fucking bitch and dumb cunt." Refusing to ignore such 

conduct, Kunin approached Lodato and informed him that 

she would not be intimidated. After Lodato continued to 

curse her, she paged supervisor Kerper and asked him to 

come to the sales floor. Kerper and Kunin went outside the 

store where Kunin informed him of the demeaning language 

that Lodato had directed at her and asked Kerper "to stop 

it now." Kerper replied that the store manager, Robert 

Dugan, who would not return for two days, would have to 

address the situation. Upon entering the store, however, 

Kerper instructed Lodato to stay away from Kunin, an 

instruction that Lodato followed. 

Shortly after her discussion with Kerper, Kunin's shift 

ended and she prepared to leave the store. Unexpectedly, 

however, on her way out she encountered her boyfriend, 

David Eldridge, and his adult son. She recounted the day's 

events to Eldridge, and they then proceeded through the 

store to his truck, which was parked outside. As they 

passed through Kunin's department, Eldridge approached a 

group of male employees and, after asking who was Lodato, 

jabbed Lodato in the shoulder. A screaming match then 

ensued, and eventually store employees summoned both 

store security and the police. One of the employees that 

witnessed the incident testified at trial that Kunin had a 

smile on her face when Eldridge confronted Lodato. 

After investigating the May 18 incident, Sears terminated 

Lodato and Kunin and issued a reprimand to Kerper. Sears 

fired Lodato because he admitted to using improper 

language in the workplace, and terminated Kunin because 

of her "failure to discourage a situation that led to physical 

violence and threats of violence directed at Randy Lodato." 

Kerper's reprimand faulted him for failing to deal with the 

situation between Lodato and Kunin "in a decisive manner," 

thus causing it to "flare up." Believing that she had suffered 

sexual harassment and that Sears had fired her because of 

her complaints about such treatment, Kunin filed suit in 

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the district court on July 14, 1997, alleging that Sears had 

violated Title VII.1 

B. Procedural History 

After discovery, Sears moved for summary judgment on 

Kunin's sexual harassment and retaliation claims, but the 

district court denied its motion on December 5, 1997. 

Although stating that the evidence supporting Kunin's 

claims did not appear "overwhelming," the court found that 

because many of the issues boiled down to "he said, she 

said" disputes, the entry of summary judgment was 

inappropriate.2 

The case was tried to a jury on December 8, 9, and 10, 

1997. At the end of Kunin's case and at the end of all of the 

evidence, Sears unsuccessfully moved for a judgment as a 

matter of law. At the close of the trial, the jury returned a 

verdict in Kunin's favor on the sexual harassment claim 

and awarded her $38,000 for pain and suffering. Although 

it found in Sears' favor on the retaliation claim, the jury 

nevertheless awarded Kunin $75,000 in front pay damages. 

Sears filed post-trial motions renewing its request for a 

judgment as a matter of law, or in the alternative, a new 

trial with respect to the sexual harassment verdict and the 

damages award. In particular, it argued that Kunin had 

failed to establish the elements of a sexual harassment 

claim and that the jury's award of front pay was 

inconsistent with its conclusion that Sears did not retaliate 

against Kunin in terminating her. The district court again 

denied Sears' motions, stating first that viewing the 

evidence in the light most favorable to Kunin, it found that 

she had established every element of a sexual harassment 

_________________________________________________________________ 

1. Kunin's complaint included other claims of sex discrimination, such 

as the allegation that Sears had assigned to its female employees lower 

paying jobs than it had assigned to its male employees. During a pretrial hearing, however, Kunin stated that she would pursue only the 

claims that Lodato had sexually harassed her and that Sears had fired 

her in retaliation for reporting such harassment. 

2. Sears' appeal includes the claim that the district court erred in not 

granting it summary judgment. Even if we could consider that argument, 

we have no reason to do so. 

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claim. Next, the court stated that it was an issue of first 

impression in this circuit whether a plaintiff who had been 

discharged, rather than constructively discharged, could 

recover front pay where a jury found sexual harassment 

but not retaliatory discharge. The court upheld the front 

pay award for two reasons. First, it stated that the award 

showed that the jury had "found a causal connection

between the defendant's wrongful conduct and plaintiff's 

discharge, despite its finding of no retaliation." Although 

finding the causal link "somewhat attenuated," the court 

noted that "[a] defendant is generally liable for all harm 

flowing from its wrongful conduct," and that it was

"unaware of any rule of law precluding an award of 

damages where the but-for causes of a discharge were 

multifactorial." Second, the court found that it would be 

"contrary to the purposes of Title VII to hold that a plaintiff 

who is discharged because of circumstances arising out of 

sexual harassment cannot collect front pay damages,

whereas a plaintiff who walks out of her job can be

awarded such damages." Based on its reasons for 

upholding the front pay award, the court then also granted 

Kunin's motion for back pay in the amount of $46,741.42. 

Sears appeals, raising three alleged errors. First, it 

argues that it was entitled to judgment as a matter of law 

on Kunin's sexual harassment claim because the evidence, 

even when viewed in the light most favorable to Kunin, 

failed to establish "regular and pervasive" harassment and 

respondeat superior liability on Sears' part. Second, it 

claims that awards of front and back pay are unfounded 

legally where a jury concludes that an employer did not act 

based on a discriminatory motive in firing the employee. 

Finally, Sears contends that the district court erred in 

admitting evidence of previous complaints Kunin made to 

Sears management about issues unrelated to her sexual 

harassment claims. Because we find Sears' argument that 

Kunin failed to prove respondeat superior liability

compelling, we do not address its other assertions.3 

_________________________________________________________________ 

3. Our failure to discuss these other claims should not be interpreted as 

in any way reflecting our judgment about their merit. 

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III. DISCUSSION4 

Title VII of the Civil Rights Act of 1964 makes it unlawful 

for an employer "to discriminate against any individual with 

respect to his [or her] compensation, terms, conditions, or 

privileges of employment, because of such individual's race, 

color, religion, sex, or national origin." 42 U.S.C. S 2000e2(a)(1). It is well established that a plaintiff can 

demonstrate a violation of Title VII by proving that sexual 

harassment created a hostile or abusive work environment. 

See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 

2399, 2405 (1986). 

According to our precedent, to succeed in a sexual 

harassment claim based on a hostile work environment, the 

plaintiff must show five elements: 

 (1) the employee[ ] suffered intentional discrimination 

 because of [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) the 

 existence of respondeat superior liability. 

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

Cir. 1990).5 The district court instructed the jury pursuant 

to this standard and the parties do not question that this 

standard applies to this case. The central dispute in this 

appeal concerns the fifth factor in the Andrews test, the 

existence of respondeat superior liability. 

_________________________________________________________________ 

4. We review under a plenary standard Sears' claim that the district 

court erred in denying it judgment as a matter of law after the trial, 

viewing the evidence in the light most favorable to Kunin in order to 

determine whether there was "insufficient evidence from which a jury 

reasonably could find liability." Shade v. Great Lakes Dredge & Dock Co., 

154 F.3d 143, 149 (3d Cir. 1998). 

5. In Williamson v. City of Houston, 148 F.3d 462, 465 (5th Cir. 1998), 

the court pointed out that an employer's liability for co-workers' sexual 

harassment is direct not vicarious so that the use of the term 

"respondeat superior" in such a case may not be appropriate. We need 

not pursue this point as "respondeat superior" in the context here 

connotes notice to the employer and we decide the case on that basis. 

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An employer is not always liable for a hostile work

environment. Instead, under Andrews, "liability exists 

where the defendant knew or should have known of the 

harassment and failed to take prompt remedial action." 895 

F.2d at 1486 (citations omitted). Although the evidence 

establishes that Kunin provided notice of harassment, be it 

sexual or not, to supervisor Kerper on May 18, 1996, 6 this 

notice did not establish respondeat superior liability 

because Kerper took effective action as he instructed 

Lodato to stay away from Kunin who experienced no further 

harassment from Lodato. Our precedents provide that when 

an employer's response stops harassment, there cannot be 

Title VII liability. See Bouton v. BMW of N. America, Inc., 29 

F.3d 103, 110 (3d Cir. 1994) ("By definition, there is no 

negligence if the [sexual harassment grievance] procedure is 

effective."). Thus, Sears will be liable to Kunin only if she 

can establish that Sears had notice of harassment prior to 

May 18 and yet failed to take adequate steps to stop it. 

Kunin argues that by asking Kerper in early May whether 

"cursing was allowed on the sales floor," she provided Sears 

management with notice of sexual harassment. Because 

Kunin did not complain specifically that Lodato, or any 

employee, was harassing her, her interaction with Kerper 

does not constitute actual notice to Sears. The question 

posed, therefore, is whether Kunin's query to Kerper was 

sufficient to place him and thus Sears on constructive 

notice of the harassment. 

The Court of Appeals for the Fifth Circuit has stated that 

"the type and extent of notice necessary to impose liability 

on an employer under Title VII are the subject of some 

uncertainty." Williamson v. City of Houston, 148 F.3d 462, 

465 (5th Cir. 1998) (citations omitted). Indeed, our research 

has revealed a limited number of cases interpreting the 

doctrine of constructive notice as it relates to sexual 

harassment claims. These cases suggest that there can be 

constructive notice in two situations: where an employee 

provides management level personnel with enough 

information to raise a probability of sexual harassment in 

_________________________________________________________________ 

6. Sears has not questioned in this case that notice to Kunin's 

supervisor, Kerper, would have constituted notice to Sears itself. 

 8 
the mind of a reasonable employer, or where the 

harassment is so pervasive and open that a reasonable 

employer would have had to be aware of it. See, e.g., 

Zimmerman v. Cook County Sheriff's Dep't, 96 F.3d 1017, 

1018-19 (7th Cir. 1996). We believe that these standards 

strike the correct balance between protecting the rights of 

the employee and the employer by faulting the employer for 

turning a blind eye to overt signs of harassment but not 

requiring it to attain a level of omniscience, in the absence 

of actual notice, about all misconduct that may occur in 

the workplace. The proof offered by Kunin in this case falls 

short of these standards. 

Standing alone, Kunin's interaction with Kerper in early 

May was not enough to place him on notice that there was 

a reasonable probability of sexual harassment. Although 

Kunin's question arguably suggested that she was having 

difficulty with a fellow employee's language, her use of the 

word "cursing" did not communicate that the offensive 

language had sexual overtones. Courts have found that 

when employees' complaints do not refer to sexually

offensive behavior, employers are not on constructive notice 

of sexual harassment. See, e.g., Murray v. New York Univ. 

College of Dentistry, 57 F.3d 243, 250 (2d Cir. 1995) (ruling 

that dental student's complaint to supervising doctor that 

a clinic patient was "staring at [her] and trying to get her 

attention," was insufficient to put university on notice 

under Title IX that student was being sexually harassed 

because it did not inform the university's agent that the 

patient's conduct was of "an ongoing sexually offensive 

nature."); Schiraldi v. Ampco Sys. Parking, 9 F. Supp.2d 

213, 216, 220 (W.D.N.Y. 1998) (holding that employee's 

complaints that co-worker "wouldn't leave her alone" and 

called her "names" were insufficient to provide employer 

with constructive notice because "they gave no indication 

that [the offensive] actions were in any way sexual"). 

Kunin argues, however, that her interaction with Kerper 

in early May was not the only indication that Lodato was 

posing a problem for her. Instead, she points out that 

Kerper admitted at trial that he had heard rumors about 

offensive language in his department but never had 

investigated them. This argument encounters the same 

 9 
obstacle as Kunin's preceding claim: there is simply no 

evidence that Kerper had knowledge that the rude language 

was gender-specific. 

Moving to the second type of situation that can support 

a finding of constructive notice, we now consider whether 

the harassment alleged by Kunin was so open and 

pervasive that a reasonable employer could not have been 

ignorant of it. See Zimmerman, 96 F.3d at 1018-19. In 

analyzing the pervasiveness of the alleged harassment, we 

note first and foremost that the harassment occurred over 

a short time, from April 28, when Lodato first began 

working with Kunin, to May 18, the day of Lodato's 

altercation with Kunin's boyfriend. Further, it is clear from 

the record that Kunin and Lodato did not work together 

every day during these key three weeks; instead, they 

would have interacted only on days that their shifts 

overlapped. Thus, because of this short time period and the 

limited number of interactions between Lodato and Kunin, 

Sears' management had little opportunity to discover the 

harassment absent Kunin's giving the company actual

notice. Cf. Hall v. Gus Constr. Co., 842 F.2d 1010, 1016, 

1018 (8th Cir. 1988) (finding that even if supervisor was not 

aware of all sexual abuse, "unrelenting pattern of verbal, 

physical and psychic abuse" involved incidents"so 

numerous" that employer was "liable for failing to discover 

what was going on and to take remedial steps to put an end 

to it"). 

Moreover, the harassment in this case was not of the 

kind that would have been easily discoverable by Sears' 

management. Lodato had not posted demeaning images or 

statements about women for all to see. Cf. Lipsett v. 

University of Puerto Rico, 864 F.2d 881, 888, 906 n.25 (1st 

Cir. 1988) (finding notice possible in suit brought under 

Title IX and 42 U.S.C. S 1983 where male surgical residents 

had posted Playboy centerfolds in location where all 

residents ate their meals). Instead, he made derogatory 

remarks to Kunin personally, apparently at times when 

management was not within hearing range. Although we in 

no way mean to condone Lodato's conduct, we simply 

cannot find that Sears is liable in the circumstances here. 

Given the brief time period in which Kunin and Lodato 

 10 
worked together, the limited number of instances that the 

offensive conduct could have occurred, and the fleeting 

nature of derogatory language, Sears reasonably failed to 

discover the harassment alleged by Kunin. Because Kunin 

cannot show respondeat superior liability, the fifth factor in 

the Andrews test, her sexual harassment claim against 

Sears must fail. 

IV. CONCLUSION 

We will reverse the district court's denial of judgment as 

a matter of law to Sears on Kunin's sexual harassment 

claim as well as the judgment for all monetary damages, 

and we will remand the case to the district court with 

directions to vacate the judgment in Kunin's favor and 

enter judgment as a matter of law in Sears' favor. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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