                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             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Precedential or Non-Precedential: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


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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.

                                  2
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

                                3
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

                                4
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 pre-
trial 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.

                                5
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.

                               6
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 2000e-
2(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.

                               7
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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