                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-29-1997

Knabe v. The Boury Corp
Precedential or Non-Precedential:

Docket 95-3614




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Filed May 29, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 95-3614

KARLA J. KNABE,
APPELLANT

v.

THE BOURY CORP. d/b/a Big Boy East
d/b/a Elby's Big Boy,
APPELLEE

On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 94-cv-01627)

Argued: December 10, 1996
Before: BECKER, MANSMANN, and GREENBERG,
Circuit Judges.

(Filed May 29, 1997)

J. GREGORY GIANNUZZI,
 ESQUIRE (ARGUED)
VINCENT A. CICCONE, ESQUIRE
Giannuzzi & Ciccone
Penn Oak Professional Building
85 Universal Road
Pittsburgh, PA 15235

Attorneys for Appellant
CAROLE S. KATZ, ESQUIRE
(ARGUED)
STACY L. DUGGAN, ESQUIRE
Reed, Smith, Shaw & McClay
435 Sixth Avenue
Pittsburgh, PA 15219-1886

Attorneys for Appellee

OPINION OF THE COURT

BECKER, Circuit Judge.

This appeal by Karla Knabe arises from her civil action
against Boury Corporation alleging that she was a victim of
unlawful sexual harassment in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the
Pennsylvania Human Relations Act, 43 Pa. C.S. § 951 et
seq., while she was employed as a waitress at Boury's
"Elby's Big Boy" restaurant in Monroeville, Pennsylvania.
Knabe contends that she was subjected to a hostile work
environment created by Kevin Humbrecht, one of the
restaurant managers. The district court, having concluded
that Boury was not liable as a matter of law for
Humbrecht's actions because it took prompt and adequate
remedial action after Knabe reported the harassment to
company officials, as required by Bouton v. BMW of North
America, Inc., 29 F.3d 103 (3d Cir. 1994), granted summary
judgment to Boury. Although we view the facts in the light
most favorable to Knabe, the non-moving party, because we
conclude that there is no genuine issue of material fact that
the actions taken by Boury in response to Knabe's
complaint were other than "reasonably calculated" to
prevent future acts of harassment, we affirm.1
_________________________________________________________________

1. Knabe makes two other contentions on appeal, both of which we reject
summarily. First, Knabe contends that the district court erred in
granting summary judgment without addressing her"retaliation" claim.
Knabe's complaint, however, fails to plead a retaliation count. Second,
Knabe contends that the district court erred in rejecting her constructive
discharge claim. We disagree. Knabe's constructive discharge claim, as

                   2
I.

Knabe began working as a waitress at the Elby's Big Boy
restaurant on August 6, 1993. According to her affidavit
and deposition testimony, over the course of the following
two months, Humbrecht engaged in several acts of sexual
harassment. On at least a dozen occasions, he bumped into
her from behind, rubbed himself against her, or ran his
hands over her buttocks at the pie cooler or in other
behind-the-counter spaces. On one occasion in September
1993, Knabe showed Humbrecht a broken light in the
women's restroom. Several male employees were standing
just outside, and as Humbrecht and Knabe exited,
Humbrecht pretended to pull up his pants and his zipper in
the presence of the other employees. Knabe testified that,
when she expressed her displeasure after each of these
incidents, Humbrecht responded "don't take it personal."

On September 5, 1993, Knabe fell in the waitress area,
causing her skirt to come up and exposing most of her legs
and lower body. Sometime after her fall, Humbrecht asked
her whether she had been wearing underwear when she
fell. And on October 13, 1993, Humbrecht called Knabe at
home at approximately 7:50 a.m. to ask her to come into
work early. She told him she would be in after she had
showered and had a cup of coffee. Later that day,
Humbrecht asked her whether she had been having sex
with her fiance when he called that morning.
_________________________________________________________________

presented here, is not a separate ground for relief, but rather would
factor into the damages (e.g., backpay) available to Knabe had she
prevailed in proving Boury's liability for sexual harassment. At all events,
Knabe has not presented evidence sufficient to sustain a constructive
discharge claim under Goss v. Exxon Office Systems Co., 747 F.2d 885,
887-88 (3d Cir. 1984), where we held that a plaintiff has been
constructively discharged if "the conduct complained of would have the
foreseeable result that working conditions would be so unpleasant or
difficult that a reasonable person in the employee's shoes would resign."
Id.; see also Gray v. York Newspapers, Inc., 957 F.2d 1070, 1079 (3d Cir.
1992). As we conclude that Knabe has not adduced evidence that the
remedial action chosen by Boury was lacking, we think it is clear that
Knabe could not meet this test.

                    3
After Knabe had threatened to report his conduct to his
supervisor, Humbrecht removed her from the work schedule.2
Knabe testified that, throughout her employment, whenever
she had threatened to report him, Humbrecht told her that
"life in the unemployment line" was very unpleasant. Knabe
has acknowledged that, except for the restroom episode,
there were no witnesses to any of Humbrecht's actions.

On October 20, 1993, Knabe complained by telephone to
Sharon Barnes, who supervised the Monroeville restaurant
as well as four other Elby's. Knabe reported the instances
of harassment described above, as well as the fact that she
had been taken off the work schedule when she threatened
to report Humbrecht.3 This was the first indication to Elby's
management about Humbrecht's conduct. Barnes
consulted Elby's procedures for investigating a sexual
harassment complaint, and also contacted the director of
Big Boy East and Elby's legal counsel for advice about
investigation procedure.

On October 21, 1993, Barnes interviewed Humbrecht. He
denied any improper comments to Knabe on October 13,
1993, and Barnes did not ask him about the other
incidents. Barnes, along with Elby's director of operations,
met with Knabe on October 23, 1993, and Knabe informed
them that she wanted Humbrecht to be discharged or
transferred to another restaurant. Barnes then interviewed
three of Knabe's co-workers, all of whom had worked on
Knabe's shift on October 13, 1993. Each reported to Barnes
that they had not witnessed Humbrecht make any improper
statements to Knabe, and that they had never observed any
inappropriate behavior by a manager in the restaurant.

At the conclusion of her investigation, Barnes decided not
to reprimand or otherwise sanction Humbrecht, based on
_________________________________________________________________

2. Boury's version is that Knabe was removed from the schedule as a
disciplinary measure for writing a rude note to Randy Gilbert, the
manager responsible for scheduling, and for telling Humbrecht how to
run the restaurant.

3. In her affidavit, Knabe stated that, when she reported the harassment,
Barnes said that she "thought Kevin had learned his lesson." Barnes
explained in her declaration that Humbrecht had been transferred to the
Monroeville Elby's because he had engaged in a consensual affair with a
female subordinate at another Elby's.

                    4
her (mistaken) belief that she could not make afinding that
an employee had engaged in sexual harassment without
corroborating testimony. However, she met with Humbrecht
and informed him that Knabe was to be returned to the
work schedule immediately. More importantly, Barnes
reminded him that the "company does not tolerate any
sexual comments or actions" and that any "company
violations of this policy will receive possible suspension and
or termination." Both Barnes and Humbrecht signed a
"record of conversation" acknowledging the substance of the
conversation. Humbrecht also acknowledged that the
"procedures were explained to me and I do understand
them. I will continue to adhere to them."

The next day, October 26, Barnes met with Knabe. She
informed Knabe that, because there were no witnesses to
Humbrecht's conduct, she could not conclude that
Humbrecht had done anything inappropriate and, hence,
she could not reprimand Humbrecht. Barnes also told
Knabe that she had been restored to the work schedule,
and that she should call Barnes or certain other members
of Elby's management if the conduct recurred. Knabe
responded by informing Barnes that she could not return to
work because Humbrecht had not been transferred or fired,
and that she would pursue her recently filed EEOC charge.
Both Barnes and Knabe signed the record of conversation
reporting the substance of the conversation.

Boury's papers represent that, at all times during the
period in question, the company's sexual harassment and
open door policies were posted on the Communications
Board at the restaurant along with the names and phone
numbers of company managers to contact to lodge a
complaint. Moreover, the open door policy appeared in the
employee handbook. Knabe, however, testified that she
never saw these policies during her employment at the
restaurant.

In September 1994, Knabe filed a complaint in the
District Court for the Western District of Pennsylvania,
alleging that she was a victim of unlawful harassment in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., and the Pennsylvania Human
Relations Act, 43 Pa. C.S. § 951 et seq. After discovery,

                    5
Boury moved for summary judgment. The magistrate judge
to whom the case was referred filed a report concluding
that, while there was a genuine issue of material fact as to
whether Knabe was subjected to a hostile work
environment, Boury could not be held liable as a matter of
law for Humbrecht's actions because it took prompt and
effective remedial action after learning of Humbrecht's
conduct, as required under Andrews v. City of Philadelphia,
895 F.2d 1469 (3d Cir. 1990), and Bouton v. BMW of North
America, Inc., 29 F.3d 103 (3d Cir. 1994), and hence
recommended that Boury's motion be granted. After a de
novo review of the pleadings and evidence, the district court
adopted the magistrate judge's report and granted
summary judgment to Boury. On appeal, Knabe contends
that there are genuine issues of material fact that preclude
summary judgment in Boury's favor. The standards for
summary judgment and our standard of review are well
known and are set forth in the margin.4

II.

A.

Knabe contends that Humbrecht subjected her to a
hostile work environment during her two months of
_________________________________________________________________

4. Summary judgment is proper "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(c). Upon a motion for summary judgment, the non-moving party,
to prevail, must "make a showing sufficient to establish the existence of
[every] element essential to that party's case, and on which that party
will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). In evaluating whether the non-moving party has
established each necessary element, we must grant all reasonable
inferences from the evidence to the non-moving party. See Matsushita
Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574 (1986). "Where the
record taken as a whole could not lead a reasonable trier of fact to find
for the non-moving party, there is no `genuine issue for trial.' " Id. at
587. Our review on appeal is plenary. The district court exercised
jurisdiction under 28 U.S.C. §§ 1331 and 1367(a), and we have appellate
jurisdiction over the final order under 28 U.S.C. § 1291.

                   6
employment at the Monroeville Elby's. See Meritor Sav.
Bank v. Vinson, 477 U.S. 57, 66 (1986) ("[A] plaintiff may
establish a violation of Title VII by proving that
discrimination based on sex has created a hostile or
abusive work environment.") We have held that, to bring a
claim for sexual harassment under Title VII because of an
intimidating and offensive work environment, a plaintiff
must establish " `by the totality of the circumstances, the
existence of a hostile or abusive working environment
which is severe enough to affect the psychological stability
of a minority employee.' " Andrews, 895 F.2d at 1482
(quoting Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d
1503, 1510 (11th Cir. 1989)). Even if a work environment
is found to be hostile, a plaintiff must also show that the
conduct creating the hostile work environment should be
imputed to the employer.

In Andrews, we set forth the five factors that a plaintiff
must establish to bring a successful hostile work
environment claim against his or her employer: (1) the
employee 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. Id.; see also Spain v. Gallegos, 26
F.3d 439, 447 (3d Cir. 1994).5

The crucial question here is the fifth factor: whether
Boury can be held liable for Humbrecht's actions.6 In
_________________________________________________________________

5. Employer liability under the Pennsylvania Human Relations Act
follows the standards set out for employer liability under Title VII. See
Hoy v. Angelone, 691 A.2d 476 (Pa. Super. Ct. 1997); see also West v.
Philadelphia Elec. Co., 45 F.3d 744 (3d Cir. 1995) (utilizing Title VII
standards in case involving PHRA hostile work environment claim).

6. The district court concluded that Knabe has established a genuine
issue of material fact as to whether Humbrecht created a hostile work
environment. Boury contends that, even if we conclude that Knabe has
presented a genuine issue of material fact on the question whether
Boury can be held liable for Humbrecht's alleged actions, we should
affirm the summary judgment on the ground that Knabe had not
presented sufficient evidence to establish the existence of pervasive and
severe harassment. Because of our disposition of this appeal, we need
not reach that question.

                    7
Vinson, supra, the Supreme Court rejected the notion that
employers are strictly liable for sexually hostile work
environments created by employees. Rather, drawing from
the fact that an "agent" of an employer is included in the
definition of employer in Title VII, 42 U.S.C. § 2000e(b), the
Court directed that agency principles be used as guidance
in determining employer liability for hostile work
environments created by employees. 477 U.S. at 72. We
elaborated on those agency principles in Bouton v. BMW of
North America, Inc., 29 F.3d 103 (3d Cir. 1994).

We made clear in Bouton that the liability of an employer
is not automatic even if the sexually hostile work
environment is created by a supervisory employee.7 We
recognized three potential bases in the Restatement
(Second) of Agency for holding employers liable for
harassment committed by their employees. First, under
§ 219(1), employers are liable for the torts committed by
employees within the scope of their employment. We noted
in Bouton that, while such scope-of-employment liability is
often invoked in quid pro quo cases because a supervisor
has used his or her actual authority over the employee to
gain sexual favors, this liability is inapposite in hostile
environment cases: "[I]n a hostile environment case, the
harasser is not explicitly raising the mantle of authority to
cloak the plaintiff in an unwelcome atmosphere." Bouton,
29 F.3d at 107.

Agency law provides two other theories through which a
plaintiff can hold an employer liable for sexual harassment,
which are more appropriate in a sexually hostile work
environment case like Knabe's. Under Restatement
§ 219(2)(b), employers are liable for their own negligence or
recklessness: in this context, an employer is liable for
"negligent failure to discipline or fire, or failure to take
remedial action upon notice of harassment." Bouton, 29
F.3d at 106. And under § 219(2)(d), employers are liable if
the harassing employee "relied upon apparent authority or
_________________________________________________________________

7. Knabe, therefore, incorrectly asserts that respondeat superior liability
automatically attaches to the employer when a supervisor, who has the
authority to hire, fire, and discipline the victim of the harassment,
creates the hostile work environment.

                    8
was aided by the agency relationship." Id. Knabe relies on
the former principle in contending that Boury is liable for
the hostile work environment created by Humbrecht.

B.

Knabe submits that there is a genuine issue of material
fact whether Boury was negligent or reckless in responding
to her complaint that Humbrecht harassed her. We have
explained that an employer is liable for an employee's
behavior under a negligence theory of agency "if a plaintiff
proves that management-level employees had actual or
constructive knowledge about the existence of a sexually
hostile work environment and failed to take prompt and
adequate remedial action." Andrews, 895 F.2d at 1486;
Bouton, 29 F.3d at 107 ("[U]nder negligence principles,
prompt and effective action by the employer will relieve it of
liability.").8 Knabe concedes that Boury cannot be charged
with knowledge of Humbrecht's activities until October 20,
1993, when Knabe complained to Barnes. Thus the
question here is whether Boury took prompt and adequate
action after receiving notice of Humbrecht's alleged actions
on October 20, 1993.
_________________________________________________________________

8. Our holding in Bouton that prompt and effective remedial action by an
employer will relieve it of liability under a negligence theory of agency, 29
F.3d at 107, does not alter our holding in Andrews that an employer's
failure to take prompt and adequate remedial action may expose it to
such liability, 895 F.2d at 1486. As we will discuss in the text, a
remedial action is adequate if it is reasonably calculated to prevent
further harassment. In Bouton, the remedial action was deemed
adequate under the Andrews test because it was effective. This makes
sense. A remedial action that effectively stops the harassment will be
deemed adequate as a matter of law. On the other hand, it is possible
that an action that proves to be ineffective in stopping the harassment
may nevertheless be found reasonably calculated to prevent future
harassment and therefore adequate. Thus, where an employer's prompt
remedial action is not effective (or, as in this case, where the
effectiveness of the prompt remedial action cannot be tested), courts may
still decide that the action was adequate as a matter of law. Hence,
though Knabe's decision to quit prevents us from determining whether
Boury's remedial action was effective, the question before us is whether
there is a genuine issue of material fact as to whether that action was
adequate.

                    9
Knabe does not challenge the district court's conclusion
that Boury's response to her complaint was prompt.
Rather, she focuses on the requirement that a remedial
action must be adequate, and she contends that there is a
genuine issue of material fact regarding the adequacy of
Boury's actions. According to Knabe, Barnes' investigation
was so flawed that it could not have produced an adequate
remedial action. To support this claim, she has presented
several pieces of evidence that Barnes' investigation had
significant flaws.

First, she points to certain aspects of Barnes' deposition
testimony. Barnes testified that she believed she could not
make a finding that an employee had engaged in sexual
harassment without a witness who could corroborate the
complainant's allegations. Accordingly, she believed that
she could not reprimand Humbrecht because there were no
witnesses to the alleged harassment. In related testimony,
Barnes also stated that she did not take Knabe's credibility
into account in investigating the claim. In short, Knabe
submits, Barnes would not have reprimanded Humbrecht
because there were no witnesses to the harassment even if
she found Knabe's complaint to be fully credible.

Knabe also points to Barnes' records of conversation,
which show that Barnes questioned Humbrecht only about
the October 13 incident and not about the other alleged
instances of harassment. Similarly, she asked the three
employees whom she interviewed whether they had ever
observed any manager at the restaurant make any
improper advances or comments, without referencing
Knabe's specific allegations. Moreover, she failed to
interview the employees who witnessed the bathroom
incident. Knabe contends that, because of these
circumstances, Barnes' investigation failed to turn up
information that was vital to determining whether
Humbrecht had harassed her. According to Knabe, the
resulting response by Boury was ineluctably inadequate,
and she would have returned to an unabated hostile work
environment. Based on this evidence, Knabe contends that
the investigation was so poorly run that there is a genuine

                    10
issue of material fact as to whether the remedial action
taken was adequate.9

We disagree. The question before us is not whether the
investigation was adequate -- it appears not to have been
-- but rather whether the remedial action was adequate.
Even if a company's investigation into complaints of sexual
harassment is lacking, the employer cannot be held liable
for the hostile work environment created by an employee
under a negligence theory of liability unless the remedial
action taken subsequent to the investigation is also lacking.10
In other words, the law does not require that investigations
into sexual harassment complaints be perfect. Rather, to
determine whether the remedial action was adequate, we
must consider whether the action was "reasonably
calculated to prevent further harassment." See, e.g., Saxton
v. AT&T Co., 10 F.3d 526, 535 (7th Cir. 1993); Ellison v.
Brady, 924 F.2d 872, 882 (9th Cir. 1991); Katz v. Dole, 709
F.2d 251, 256 (4th Cir. 1983).

It is clear to us that the action taken here was reasonably
calculated to stop Humbrecht's harassment, even viewing
the facts in the light most favorable to Knabe. Although
Barnes testified that she was unable to make afinding that
harassment occurred or to subject Humbrecht to
disciplinary measures without a corroborating witness (an
incorrect premise), she nevertheless took remedial action.11
_________________________________________________________________

9. Knabe also points to evidence that Humbrecht had been transferred to
the Monroeville restaurant because he had engaged in a consensual
affair with an employee he supervised at another restaurant. See supra
n.3. She contends that Barnes' failure to take this information into
account in assessing whether Humbrecht harassed Knabe constituted
another serious flaw in Barnes' investigation. This contention, however,
is based on speculation that Humbrecht had also harassed the employee
at his prior post, and Knabe has presented no evidence of prior sexual
harassment claims lodged against Humbrecht. The evidence regarding
Humbrecht's transfer to the Monroeville restaurant is, therefore,
irrelevant.

10. That said, employers would be well advised to establish protocols to
ensure careful and complete investigation of sexual harassment
complaints.

11. Of course, we do not imply that the presence of a corroborating
witness may not be important to an employer in determining that

                    11
The record of the conversation between Barnes and
Humbrecht on October 25, which was signed by both
Barnes and Humbrecht, reflects that Barnes warned
Humbrecht that the "company does not tolerate any sexual
comments or actions. Any company violations of this policy
will receive possible suspension and/or termination."
Moreover, Humbrecht was directed to restore Knabe to the
schedule immediately. The record of the conversation
between Barnes and Knabe the next day, which was signed
by Knabe and Barnes, demonstrates that Knabe was
informed that she should contact the company at any time
regarding any improper language or sexual advances.
Barnes also provided Knabe with the names and phone
numbers of four members of Boury management, including
herself, whom Knabe could contact with any future
complaints.

Even though the company did not reprimand Humbrecht,
as it well might have, we find this remedial action adequate
as a matter of law because it was reasonably calculated to
prevent further harassment. As a result of the two meetings
with Barnes, Humbrecht was made aware of his
responsibilities, and Knabe was made aware of her rights in
case of future improper conduct. Knabe has presented no
evidence that there would have been a hostile work
environment had she returned or that Humbrecht would
have felt free to continue his harassment upon her return
to work. See Ryczek v. Guest Servs. Inc., 877 F. Supp. 754,
759 (D.D.C. 1995) ("Even if the investigation was not
handled perfectly, the plaintiff has presented no evidence to
suggest that Guest Services did anything that would have
allowed any harassment to continue."); cf. Konstantopoulos
v. Westvaco Corp., ___ F.3d ___, 1997 WL 222821 (3d Cir.
1997) (rejecting a per se rule that requiring an employee to
work in close proximity to co-workers responsible for prior
harassment constitutes hostile work environment).

Moreover, Knabe has presented no evidence that, if a
proper investigation had been performed, Barnes' response
_________________________________________________________________

remedial action is necessary. Rather, we point out that an employer can
decide that a complaint is justified even if uncorroborated. On the other
hand, an employer need not credit a complaint simply because an
employee makes it.

                    12
would have been different -- namely, she has not shown
that Humbrecht would have been reprimanded, suspended,
or fired. Under these circumstances, even assuming that
Barnes should have credited Knabe's allegations and
concluded that Humbrecht harassed her, Knabe has not
established any genuine issues of material fact as to the
adequacy of Boury's response to her complaint.

We also reject Knabe's contention that there is a genuine
issue of material fact as to whether any remedial action
was taken. According to Knabe, it is unclear from the
record whether Barnes actually "warned" Humbrecht not to
engage in further harassment. If Humbrecht was not given
a warning, the argument continues, then he was completely
exonerated and no remedial action was taken. See Fuller v.
City of Oakland, 47 F.3d 1522, 1529 (9th Cir. 1995) ("An
employer whose sole action is to conclude that no
harassment occurred cannot in any meaningful sense be
said to have `remedied' what happened. Denial does not
constitute a remedy. Nor does the fact of investigation alone
suffice; an investigation is principally a way to determine
whether any remedy is needed and cannot substitute for
the remedy itself.").

In our view, the evidence presented by Knabe points only
to the conclusion that remedial action was taken by Boury.
Barnes' record of the conversation between her and
Humbrecht reports that the company policies respecting
sexual harassment were "discussed." While Barnes herself
did not choose the word "warn," we think that informing
Humbrecht that "any company violations of this policy will
receive possible suspension and/or termination" was clearly
a warning and that no reasonable jury would find in
Knabe's favor as to whether the company actually took
remedial action.

In reaching these conclusions, we make several
observations. Although we determine that Boury's remedial
action was adequate in spite of Barnes' flawed
investigation, it is also clear that there may be cases in
which an employer's investigation is so flawed that it could
not be said that the remedial action was adequate. For
example, the investigation might be carried out in a way
that prevents the discovery of serious and significant

                    13
harassment by an employee such that the remedy chosen
by the employer could not be held to be reasonably
calculated to prevent the harassment. An investigation
must be undertaken, see Swentek v. USAir, 830 F.2d 552,
558 (4th Cir. 1987) ("In taking remedial action, USAir was
obliged to investigate Swentek's charges and to present a
reasonable basis for its subsequent actions."), and an
employer can be held liable if a faulty investigation renders
its subsequent remedial action inadequate, i.e., not
reasonably calculated to prevent further harassment.

Knabe objects to the remedial action selected by Boury,
and approved by us here, on the ground that Humbrecht
should have been transferred from the restaurant orfired.
We conclude that, if the remedy chosen by the employer is
adequate, an aggrieved employee cannot object to that
selected action. Concomitantly, an employee cannot dictate
that the employer select a certain remedial action. We agree
with the Seventh Circuit that: "No doubt, from [the
plaintiff's] perspective, [the defendant] could have done
more to remedy the adverse effects of [the employee's]
conduct. But Title VII requires only that the employer take
steps reasonably likely to stop the harassment." Saxton, 10
F.3d at 535-36.

From this holding it also follows that taking punitive
action against the harassing employee, e.g., reprimand,
suspension or dismissal, is not necessary to insulate the
employer from liability for a hostile work environment.12 So
long as the remedy is reasonably calculated to prevent
future instances of harassment, the company cannot be
held liable under a negligence theory of agency. Ryczek,
877 F. Supp. at 760 ("[A]n employer, in order to avoid
liability for the discriminatory conduct of an employee, does
not have to necessarily discipline or terminate the offending
employee as long as the employer takes corrective action
_________________________________________________________________

12. In fact, an employer might be faced with a lawsuit filed by the
employee allegedly responsible for the harassment if the employer takes
punitive action without ensuring that adequate grounds exist for the
action. See, e.g., Hope A. Comisky, "Prompt and Effective Remedial
Action?" What Must an Employer Do to Avoid Liability for "Hostile Work
Environmental" Sexual Harassment?, 8 Lab. Law. 181, 195 (1992).

                    14
reasonably likely to prevent the offending conduct from
reoccurring." (citation omitted)).

We do not, of course, suggest that nonpunitive action will
be an adequate remedy in all cases.13 Whether a
nonpunitive remedy is reasonably calculated to end the
harassment is, to a certain extent, a function of the severity
and frequency of the harassment, and is a highly fact-
specific inquiry. The more severe and more frequent the
harassment, the less likely a nonpunitive remedy will be
found adequate. But where, as here, the plaintiff has
presented no evidence that a nonpunitive remedial action
was not reasonably calculated to end the harassment,
summary judgment for an employer is appropriate.

Knabe also contends that the effect of the district court's
judgment is that a complainant must return to work after
the remedial action in order to present evidence sufficient
to create a genuine issue of material fact regarding the
adequacy of the remedy. According to Knabe, the district
court's holding implied that she could have withstood
summary judgment only by presenting evidence that she
faced a sexually hostile work environment when she
returned to the workplace. We disagree. Knabe must only
present enough evidence to show, taking that evidence as
true, that the remedial action was not "reasonably
calculated" to prevent further acts of harassment, and even
a plaintiff who fails to return to work because of
dissatisfaction with the remedial action chosen by the
employer can make this showing.

The question whether a chosen remedy was reasonably
calculated to prevent further acts of harassment can be
answered at the time that remedy is put into place. While
evidence that an employee returned to a hostile
environment after the remedial action is certainly helpful to
a plaintiff's case, it is not necessary for resolving whether,
at the time it was carried out, the employer's response was
reasonably calculated to end the harassment. Moreover, the
rule that a plaintiff must show that the remedy was not
_________________________________________________________________

13. Indeed, Boury's own counsel conceded at oral argument that a
warning would not be an adequate remedy in a situation in which an
employee alleged that she was raped by another employee.

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reasonably calculated to prevent further acts of harassment
prevents a different, but no less unfortunate, result: it
makes clear that a plaintiff cannot survive summary
judgment merely by failing to return to his or her job after
the remedial action at issue is taken.14

The judgment of the district court will be affirmed.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________

14. Knabe also relies on language in Bouton that "an effective grievance
procedure--one that is known to the victim and that timely stops the
harassment--shields that employer from Title VII liability for a hostile
environment." 29 F.3d at 110. Based on this language, she contends
that, because there is an issue of fact as to whether Knabe knew about
the grievance procedure, see supra p. 5, she has presented sufficient
evidence to withstand summary judgment with respect to whether Boury
was negligent in carrying out the remedial action. We disagree. While
employers would be well advised to ensure clear and permanent notice
of its sexual harassment policy and grievance procedure, the language
from Bouton suggests only one way in which an employer can escape
negligence liability for a sexually hostile work environment created by an
employee. So long as the remedial action taken is prompt and adequate,
it is not necessary that the plaintiff have previous knowledge of a sexual
harassment grievance procedure for the employer to be entitled to
summary judgment.

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