### 1999 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

4-28-1999 

# K unin v . S e a rs R o e buck & C o

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 98-1481

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1999

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1999 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" K unin v . S e a r s R oe buck & C o " (1999). 1999 D e cisio n s

. P a pe r 113.
h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1999/113Filed 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 AppelleeL. 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 resp ondeat superior liability for hostile work environment cla ims 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 harasse d her over a three-week period by using sexually derogato ry language. Kunin did not report the harassment, howe ver, to Sears' management until the end of the period, and instead during the period only asked her supervisor the gen eral question of whether "cursing" was permitted in the workplace. Because we conclude that an employee pro vides notice to the employer only when he or she complain s about sexually offensive conduct, and because Sears had
neither actual nor constructive notice of the haras sment until the end of the three-week period, we will rev erse the district court's denial of Sears' motion for judgme nt as a matter of law and will remand for entry of judgment in

Sears' favor.

The district court had federal question jurisdictio n over Kunin's Title VII sexual harassment claim against S ears under 28 U.S.C. S 1331 and 42 U.S.C. S 2000e-5(f)(3 ). Because the district court entered final judgment a fter a jury verdict, we have jurisdiction under 28 U.S.C.S 1291.

2II. FACTUAL AND PROCEDURAL HISTORY

A. Factual History

Kunin worked as a salesperson for Sears at its Neshaminy Mall store in Bensalem, Pennsylvania, fro m 1987 to 1996. This lawsuit arises from alleged sexu al harassment that Kunin experienced at that store fro m a fellow employee, Randy Lodato.

In March 1996, Sears transferred Kunin, at her requ est, to its division 26/46, major appliances. Approximat ely one month later, on April 28, Lodato began to work in t he same department, where Kunin was the only woman. Kunin quickly began to experience problems working with L odato because of his regular use of profanity, which incl uded directing the term "fucking bitch" at her personall y. She testified at trial that Lodato used vulgar language on every occasion that she worked with him and was unrespons ive to her requests to stop his offensive conduct. In o ne instance, Lodato responded to Kunin's complaints by stating that she "must be virgin ears" and would ha ve to grow accustomed to his language or return to her pr evious department. Kunin's fellow employees confirmed at t rial that Lodato regularly used profanity, and that they had witnessed him direct the profanity, including the t erm "fucking bitch," at Kunin.

Because of Lodato's unresponsiveness, Kunin took th e opportunity to speak with a supervisor in early May . With Lodato following her, Kunin approached her supervis or, George Kerper, while he was on the sales floor of h er department and asked: "is cursing allowed on the sa les floor?" Kerper, who was working on a computer at th e time, replied "no," but asked no follow up questions and turned his back to Kunin. At that time, Kunin did not info rm Kerper specifically that Lodato was using vulgar la nguage that offended her.

The conflict between Kunin and Lodato came to a hea d on May 18, 1996, less than two weeks after Kunin ha d approached Kerper on the sales floor. Kunin testifi ed that on that day Lodato yelled at her to stop approachin g the customers in their department, even though she regu larly had observed male employees doing so. After this

3disagreement, Kunin witnessed Lodato gesturing to t heir

fellow employees. When she inquired about what had been said, she learned that Lodato had referred to her a s a "fucking bitch and dumb cunt." Refusing to ignore s uch conduct, Kunin approached Lodato and informed him t hat
she would not be intimidated. After Lodato continue d to curse her, she paged supervisor Kerper and asked hi m to come to the sales floor. Kerper and Kunin went outs ide the store where Kunin informed him of the demeaning lan guage that Lodato had directed at her and asked Kerper "t o stop it now." Kerper replied that the store manager, Rob ert Dugan, who would not return for two days, would hav e to address the situation. Upon entering the store, how ever, Kerper instructed Lodato to stay away from Kunin, a n instruction that Lodato followed.

Shortly after her discussion with Kerper, Kunin's s hift ended and she prepared to leave the store. Unexpect edly, however, on her way out she encountered her boyfrie nd, David Eldridge, and his adult son. She recounted th e day's events to Eldridge, and they then proceeded through the store to his truck, which was parked outside. As th ey passed through Kunin's department, Eldridge approac hed a group of male employees and, after asking who was L odato, jabbed Lodato in the shoulder. A screaming match th en ensued, and eventually store employees summoned bot h store security and the police. One of the employees that
witnessed the incident testified at trial that Kuni n had a smile on her face when Eldridge confronted Lodato.

After investigating the May 18 incident, Sears term inated 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 bec ause 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 m anner," thus causing it to "flare up." Believing that she h ad suffered
sexual harassment and that Sears had fired her beca use of her complaints about such treatment, Kunin filed su it in

4the district court on July 14, 1997, alleging that Sears had

violated Title VII.1

B. Procedural History

After discovery, Sears moved for summary judgment o n Kunin's sexual harassment and retaliation claims, b ut the district court denied its motion on December 5, 199 7. Although stating that the evidence supporting Kunin 's claims did not appear "overwhelming," the court fou nd 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 c laim and awarded her $38,000 for pain and suffering. Alt hough it found in Sears' favor on the retaliation claim, the jury nevertheless awarded Kunin $75,000 in front pay dam ages.

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 harass ment 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 cour t again denied Sears' motions, stating first that viewing t he evidence in the light most favorable to Kunin, it f ound that she had established every element of a sexual haras sment

___________________________________________________ ______________

1. Kunin's complaint included other claims of sex d iscrimination, such as the allegation that Sears had assigned to its fe male employees lower paying jobs than it had assigned to its male employ ees. During a pretrial hearing, however, Kunin stated that she would pursue only the claims that Lodato had sexually harassed her and th at Sears had fired her in retaliation for reporting such harassment.

2. Sears' appeal includes the claim that the distri ct court erred in not granting it summary judgment. Even if we could cons ider that argument,

we have no reason to do so.

5claim. 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 harassm ent but not retaliatory discharge. The court upheld the front pay award for two reasons. First, it stated that th e award showed that the jury had "found a causal connection between the defendant's wrongful conduct and plaint iff'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 a ll 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 wer e multifactorial." Second, the court found that it wo uld 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 $46,74 1.42.

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 evid ence, even when viewed in the light most favorable to Kun in, failed to establish "regular and pervasive" harassm ent and respondeat superior liability on Sears' part. Secon d, it claims that awards of front and back pay are unfoun ded legally where a jury concludes that an employer did not act based on a discriminatory motive in firing the empl oyee. Finally, Sears contends that the district court err ed in admitting evidence of previous complaints Kunin mad e to Sears management about issues unrelated to her sexu al 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 meri t.

6III. DISCUSSION4

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer "to discriminate against any indivi dual with respect to his [or her] compensation, terms, condit ions, or privileges of employment, because of such individua l's race, color, religion, sex, or national origin." 42 U.S.C . S 2000e2(a)(1). It is well established that a plaintiff ca n demonstrate a violation of Title VII by proving tha t sexual
harassment created a hostile or abusive work enviro nment. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66, 1 06 S.Ct. 2399, 2405 (1986).

According to our precedent, to succeed in a sexual
harassment claim based on a hostile work environmen t, the plaintiff must show five elements:

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

Andrews v. City of Philadelphia, 895 F.2d 1469, 148 2 (3d Cir. 1990).5 The district court instructed the jury pursuant to this standard and the parties do not question th at this standard applies to this case. The central dispute in this appeal concerns the fifth factor in the Andrews tes t, 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 l aw 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 La kes 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 app ropriate. We need not pursue this point as "respondeat superior" in t he context here connotes notice to the employer and we decide the c ase on that basis.

7An employer is not always liable for a hostile work

environment. Instead, under Andrews, "liability exi sts
where the defendant knew or should have known of th e harassment and failed to take prompt remedial actio n." 895 F.2d at 1486 (citations omitted). Although the evid ence establishes that Kunin provided notice of harassmen t, be it sexual or not, to supervisor Kerper on May 18, 1996 , 6 this notice did not establish respondeat superior liabil ity because Kerper took effective action as he instruct ed Lodato to stay away from Kunin who experienced no f urther harassment from Lodato. Our precedents provide that when an employer's response stops harassment, there cann ot be Title VII liability. See Bouton v. BMW of N. Americ a, Inc., 29 F.3d 103, 110 (3d Cir. 1994) ("By definition, there is no negligence if the [sexual harassment grievance] pro cedure is effective."). Thus, Sears will be liable to Kunin o nly if she can establish that Sears had notice of harassment p rior to May 18 and yet failed to take adequate steps to sto p it.

Kunin argues that by asking Kerper in early May whe ther "cursing was allowed on the sales floor," she provi ded Sears management with notice of sexual harassment. Becaus e Kunin did not complain specifically that Lodato, or any employee, was harassing her, her interaction with K erper does not constitute actual notice to Sears. The que stion posed, therefore, is whether Kunin's query to Kerpe r was sufficient to place him and thus Sears on construct ive
notice of the harassment.

The Court of Appeals for the Fifth Circuit has stat ed that "the type and extent of notice necessary to impose liability on an employer under Title VII are the subject of s ome uncertainty." Williamson v. City of Houston, 148 F. 3d 462, 465 (5th Cir. 1998) (citations omitted). Indeed, ou r research has revealed a limited number of cases interpreting the
doctrine of constructive notice as it relates to se xual harassment claims. These cases suggest that there c an be constructive notice in two situations: where an emp loyee provides management level personnel with enough information to raise a probability of sexual harass ment in

___________________________________________________ ______________

6. Sears has not questioned in this case that notic e to Kunin's supervisor, Kerper, would have constituted notice t o Sears itself.

8the mind of a reasonable employer, or where the

harassment is so pervasive and open that a reasonab le employer would have had to be aware of it. See, e.g
., Zimmerman v. Cook County Sheriff's Dep't, 96 F.3d 1 017, 1018-19 (7th Cir. 1996). We believe that these stan dards strike the correct balance between protecting the r ights of the employee and the employer by faulting the emplo yer for turning a blind eye to overt signs of harassment bu t not requiring it to attain a level of omniscience, in t he absence of actual notice, about all misconduct that may occ ur in the workplace. The proof offered by Kunin in this c ase falls

short of these standards.

Standing alone, Kunin's interaction with Kerper in early May was not enough to place him on notice that ther e was a reasonable probability of sexual harassment. Alth ough Kunin's question arguably suggested that she was ha ving difficulty with a fellow employee's language, her u se of the word "cursing" did not communicate that the offensi ve language had sexual overtones. Courts have found th at when employees' complaints do not refer to sexually offensive behavior, employers are not on constructi ve notice of sexual harassment. See, e.g., Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 250 (2d Cir. 199 5) (ruling that dental student's complaint to supervising doct or that a clinic patient was "staring at [her] and trying t o get her attention," was insufficient to put university on n otice under Title IX that student was being sexually hara ssed because it did not inform the university's agent th at the patient's conduct was of "an ongoing sexually offen sive nature."); Schiraldi v. Ampco Sys. Parking, 9 F. Su pp.2d 213, 216, 220 (W.D.N.Y. 1998) (holding that employe e's complaints that co-worker "wouldn't leave her alone " and called her "names" were insufficient to provide emp loyer with constructive notice because "they gave no indi cation that [the offensive] actions were in any way sexual ").

Kunin argues, however, that her interaction with Ke rper in early May was not the only indication that Lodat o was posing a problem for her. Instead, she points out t hat Kerper admitted at trial that he had heard rumors a bout offensive language in his department but never had investigated them. This argument encounters the sam e

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

evidence that Kerper had knowledge that the rude la nguage was gender-specific.

Moving to the second type of situation that can sup port a finding of constructive notice, we now consider w hether 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 harassme nt, we
note first and foremost that the harassment occurre d over a short time, from April 28, when Lodato first bega n 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 toget her every day during these key three weeks; instead, th ey would have interacted only on days that their shift s overlapped. Thus, because of this short time period and the
limited number of interactions between Lodato and K unin, Sears' management had little opportunity to discove r 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 supervis or 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 th e kind that would have been easily discoverable by Se ars' 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 r esidents had posted Playboy centerfolds in location where al l residents ate their meals). Instead, he made deroga tory remarks to Kunin personally, apparently at times wh en management was not within hearing range. Although w e in no way mean to condone Lodato's conduct, we simply
cannot find that Sears is liable in the circumstanc es here. Given the brief time period in which Kunin and Loda to

10worked together, the limited number of instances th at the

offensive conduct could have occurred, and the flee ting nature of derogatory language, Sears reasonably fai led to discover the harassment alleged by Kunin. Because K unin cannot show respondeat superior liability, the fift h factor in the Andrews test, her sexual harassment claim again st
Sears must fail.

IV. CONCLUSION

We will reverse the district court's denial of judg ment as
a matter of law to Sears on Kunin's sexual harassme nt claim as well as the judgment for all monetary dama ges, and we will remand the case to the district court w ith 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

11