Pennsylvania State Police v. Suders, Nancy (06/14/2004)

Questions presented: When a hostile work environment created by a supervisor culminates in a constructive discharge, may the employer assert an affirmative defense?

BY KEVIN GRASHA, MEDILL NEWS SERVICE

Nancy Drew Suders had just started working as a dispatcher for the Pennsylvania state police in March 1998 when the harassment started.

Her three supervisors, she said, would bombard her daily with lewd comments. One would bring up the subject of having sex with animals. Another would talk openly about oral sex or verbally harass her. The worst of them referred to her as "Momma" and acted out an obscene professional wrestling move five to ten times per shift.

Suders described that supervisor's actions this way: "[He] would cross his hands, grab hold of his private parts and yell, "Suck it!"

The mother of three children was also subject to disparaging remarks about her age and her political affiliation, she claimed. Before working at the state police station in McConnellsburg, Penn., she had been an active member of a local chapter of the Republican Party and had befriended state and county party leaders -- at least one of whom helped her apply for the job.

All three supervisors either denied making offensive statements or said Suders had misinterpreted their remarks.

In August 1998, Suders contacted the department's equal opportunity employment officer, and said she was being harassed. The officer told her to fill out a complaint form, but did not tell her where to obtain the form, and according to Suders, expressed little sympathy. Two days later, she reached her breaking point when her supervisors falsely accused her of theft and detained her -- an incident in which she was handcuffed, photographed and questioned in an interrogation room. That same day, after five months on the job, Suders resigned.

She sued the state police, and the three supervisors in particular, in federal court, claiming she was discriminated against on the basis of age, political affiliation and sex. Suders said the harassment was so severe in creating a sexually hostile work environment that her only option was to quit.

But before the case went to trial, the district court granted summary judgment for both the state police and the supervisors. As to the three supervisors, the judge ruled that the federal discrimination statutes do not contemplate liability by individual employees.

Though the judge concluded that there was enough evidence to go to trial on the issues of whether the work environment was sufficiently hostile to constitute intentional discrimination that would offend a reasonable person, there could not be vicarious liability against the state police so long as they had established adequate, internal procedures to deal with harassment complaints, which Suders failed to use.

John G. Knorr, Pennsylvania's chief deputy attorney general, who is representing the state police, explained that in sexual harassment cases, the U.S. Supreme Court has previously said employers are not necessarily liable.

"If an employer can prove it had policies and procedures in place to address claims of sexual harassment and the employee failed to take advantage of those," Knorr said, "the employer is off the hook."

But the 3rd Circuit Court of Appeals reversed, finding unanimously that the district judge failed to account for two things. First, the three-judge panel held that summary judgment was inappropriate because it could be disputed whether the state police had "exercised reasonable care" to prevent or correct the harassment. Also, the court held that the facts indicated there was a "constructive discharge" -- that the working environment was so intolerable Suders had no choice but to quit.

The 3rd Circuit's opinion stated: "It is clear that Suders offered evidence sufficient to establish a pattern of sexual harassment that was pervasive and regular. Particularly telling is [the supervisor's] repetition of the wrestling move five to ten times per shift... The [district court's] grant of summary judgment...was improper."

Moreover, the court held that when a constructive discharge exists, it can result in "a tangible employment action." And if it does, the court reasoned, that action by the employer itself would preclude the state police from raising the affirmative defense that it had procedures in place to deal with the harassment complaints.

The court also addressed whether its conclusion conflicted with two 1998 Supreme Court cases which stand for the proposition that an employer can be vicariously liable for discrimination by its supervisors when actions at work result in a tangible employment action that significantly changes the employee's employment status. In Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, the Court created two categories of vicarious liability; one in which the employer doesn't take any tangible action against the employee, in which case it can defend itself by showing it had exercised care to prevent such supervisory harassment or it had procedures in place that the employee didn't use; and one in which the employer has taken tangible action against the employee, in which case it can't raise those defenses.

The 3rd Circuit concluded that there was no conflict with the two Supreme Court cases by its holding that Suders' decision to quit constituted a constructive discharge that amounted to a tangible action the state police took against her.

In so holding, the 3rd Circuit noted that its conclusion was consistent with the position of the 8th Circuit, but in conflict with opinions in the 2nd and 6th circuits.

Pointing to the conflict among the circuits, the Pennsylvania State Police sought Supreme Court review. "Employers and employees need to know what the rules are," according to Knorr.

The U.S. Chamber of Commerce filed an amicus brief urging the court to overturn the 3rd Circuit's decision, saying it could place an unnecessary burden on businesses.

"The employer community is concerned that if the 3rd Circuit's approach is widely followed," the brief stated, "a perverse incentive will be created to encourage employees, more interested in boosting the value of their claim than fixing the underlying problem, to resign in lieu of remaining employed and providing notice, thereby impeding an employer's ability to remedy the situation."

On Dec. 1, 2003, the Supreme Court accepted review in the case, and on March 19, 2004, the Court allowed the U.S. Solicitor General to present oral arguments in the case.