                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-31-2006

Jensen v. Postmaster General
Precedential or Non-Precedential: Precedential

Docket No. 04-4078




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Jensen v. Postmaster General" (2006). 2006 Decisions. Paper 1654.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1654


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                          PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                        No. 04-4078


                    ANNA M. JENSEN,

                              Appellant

                             v.

               JACK E. POTTER,
     POSTMASTER GENERAL US POSTAL SERVICE



                 ON APPEAL FROM THE
          UNITED STATES DISTRICT COURT
    FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                 (Dist. Ct. No. 03-cv-01201)
       District Court Judge: Hon. Richard P. Conaboy


                Argued: September 29, 2005


Before: ALITO and AMBRO, Circuit Judges, and RESTANI,*
Chief Judge, United States Court of International Trade

              (Opinion Filed January 31, 2006)




KIMBERLY D. BORLAND

      *
        Honorable Jane A. Restani, Chief Judge of the United
States Court of International Trade, sitting by designation.
DAVID P. TOMASZEWSKI (Argued)
Borland & Borland
69 Public Square, 11th floor
Wilkes Barre, PA 18701

Counsel for Appellant

J. JUSTIN BLEWITT, JR. (Argued)
Assistant United States Attorney
Federal Building
235 N. Washington Ave.
P.O. Box 309
Scranton, PA 18501

Counsel for Appellee



                   OPINION OF THE COURT


ALITO, Circuit Judge

       Appellant Anna Jensen is a letter carrier with the Kingston,
Pennsylvania branch of the United States Post Office. In this
action against her employer, she brings claims for retaliation and
sex discrimination pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. The District Court granted the
Postmaster General’s motion for summary judgment as to both
claims, and Jensen appealed.

         We will reverse and remand. With respect to retaliation, the
District Court incorrectly held that coworker harassment cannot
violate 42 U.S.C. § 2000e-3(a). As to sex discrimination, the
record contains evidence sufficient to support a finding that the
alleged retaliatory harassment was also discrimination “because of
. . . sex.” See 42 U.S.C. § 2000e-2(a).



                                 I.

                                 2
         Both Jensen’s claims arise from a series of events that
began with an unwanted sexual proposition. While at work on
Saturday morning, September 15, 2001, Jensen received a phone
call from supervisor Carl Waters. Waters had the day off, and he
asked if Jensen knew the way to his home. When Jensen said she
didn’t, he gave her directions. As he spoke, Waters struggled with
the pronunciation of certain street names. He apologized to Jensen
and attributed the slurred speech to an all-night drinking binge.

        After completing the directions, Waters said: “Now Anna,
I don’t care what [obscenity] you go in and tell those guys in the
office, get out of there right now [because] I want to make love to
you all day long.” App. 63. Jensen declined, but Waters persisted,
asking her at least to join him for breakfast. Jensen again said no,
and Waters responded: “Anna, you put me in a compromising
position.” App. 63. Jensen made it clear that her decision was
final, and the conversation ended.

       The next day, Jensen phoned Kingston branch manager
Chris Moss and reported the incident. A more detailed discussion
occurred when Jensen returned to work on Tuesday the 18th.
Waters continued to work at the Kingston branch for two more
days, but Jensen and he did not interact. On Thursday the 20th, the
Postal Service transferred Waters to the Ashley branch. An
investigation followed, and in January 2002 Waters was fired.

        Meanwhile, on September 26, 2001, supervisor Rick
Honeychurch moved Jensen’s workstation from Moss’s office to
a stand-up desk in an area of the Post Office called Unit 1.
Jensen’s stay in Moss’s office had begun after an injury required
the use of crutches and the elevation of Jensen’s leg. Moss
testified that he instructed Honeychurch to move Jensen for two
reasons: her leg had healed and he had confidentiality concerns
about the pending Waters investigation. For her part, Jensen heard
third-hand that Moss feared being alone with her. Whatever the
reason, Jensen’s new desk was the former workspace of Carl
Waters, and her reception in Unit 1 was not friendly.

       Right away, letter carrier Joe Sickler began to pepper Jensen
with insults. On September 26, he referred to Jensen as “the

                                 3
[obscenity] who got [Waters] in trouble.” App. 65. He then
remarked within Jensen’s earshot that she would have to get off her
“fat [obscenity]” once a new supervisor arrived. The next day,
Jensen overheard Sickler discussing a proposed petition to bring
Waters back. Sickler also stated that Waters should not have to
apologize for anything. Some time later, Sickler crept up behind
Jensen and clapped two objects together. Startled, Jensen cringed
with fright. She then reported Sickler’s behavior to Moss and
asked to be removed from Unit 1. Moss said he would talk to
Sickler, but he declined to move Jensen despite the availability of
another workstation. When asked at his deposition to explain why
he did not move Jensen, Moss answered: “Because I didn’t.” App.
195. Sickler’s offensive comments continued at a pace of two to
three times per week for about 19 months.

       Besides Sickler, letter carrier Ed Jones, a friend to Jensen
before she reported Waters, now threatened her by driving U-Carts
toward her at a rapid pace. He also told Jensen that he disagreed
with the decision to terminate Waters. Approximately one year
after the Waters incident, unknown vandals twice scratched
Jensen’s car with a key, spit on the car, and spilled coffee on it. All
the incidents occurred in the Post Office parking lot; before the
Waters telephone call vandals had never victimized Jensen.

       In addition to her initial request to leave Unit 1, Jensen
repeatedly complained to Moss and Honeychurch about her
coworkers’ behavior. At some point during the relevant
period—exactly when is unclear—Honeychurch claims to have
confronted Sickler about his offensive comments. Conditions did
not improve, however, until 19 months after Jensen’s first
complaint. At that time, Jensen complained to a new supervisor,
Melissa White. White brought Jensen into Moss’s office, and
Jensen again detailed her treatment at the hands of coworkers.
Moss, White, and union officials then confronted Sickler, and
Jensen’s troubles quickly abated.

       During this 19-month period, Jensen suffered panic attacks,
she used sick time because of stress, and her asthma caused trips to
the emergency room. She attributes these problems to working
conditions at the Post Office.


                                  4
         Based on these events, Jensen brought two claims: sex
discrimination pursuant to 42 U.S.C. § 2000e-2(a), and retaliation
under 42 U.S.C. § 2000e-3(a). The District Court granted the
defendant’s motion for summary judgment on both claims, and this
appeal followed. Our review is plenary, and we view the facts in
the light most favorable to Jensen. See United Artists Theatre
Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 396 n.3 (3d Cir.
2003). If a reasonable jury could find for her, we must reverse.
Neumeyer v. Beard, 421 F.3d 210, 213 (3d Cir. 2005).

                                  II.

        Jensen claims that her employer is liable for her coworkers’
actions under Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a).
That provision makes it an unlawful employment practice to
“discriminate” against an employee “because [the employee] has
made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under [Title VII].”1 The
parties dispute both the scope of this prohibition and its application
to this case. As a result, we must first clarify § 2000e-3(a)’s
meaning and then apply those principles to the record before us.

                                 A.

         The threshold question is whether a retaliation claim
predicated upon a hostile work environment is cognizable under 42
U.S.C. § 2000e-3(a). Jensen says it is, the Postmaster says it isn’t,
and our sister circuits are split. A majority has held that the statute
prohibits severe or pervasive retaliatory harassment. See Noviello
v. City of Boston, 398 F.3d 76, 90 (1st Cir. 2005); Von Gunten v.
Maryland, 243 F.3d 858, 866 (4th Cir. 2001); Ray v. Henderson,
217 F.3d 1234, 1244-45 (9th Cir. 2000); Richardson v. N.Y. State
Dep’t of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999); Gunnell v.
Utah Valley State Coll., 152 F.3d 1253, 1264 (10th Cir. 1998);
Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir.
1998); Knox v. Indiana, 93 F.3d 1327, 1334-35 (7th Cir. 1996); see


       1
        The parties agree that Jensen “made a charge . . . under
[Title VII]” when she reported the Waters phone call to branch
manager Chris Moss. See 42 U.S.C. § 2000e-3(a).

                                  5
also Morris v. Oldham County Fiscal Court, 201 F.3d 784, 791-92
& n.8 (6th Cir. 2000) (holding that retaliatory harassment by a
supervisor is actionable but “tak[ing] no position on whether an
employer can be liable for coworkers’ retaliatory harassment”).
The Fifth and Eighth Circuits, however, limit § 2000e-3(a) to
“ultimate employment decisions,” and thus do not view harassment
to be within the statute’s reach. See Manning v. Metropolitan Life
Ins. Co., 127 F.3d 686, 692 (8th Cir. 1997); Mattern v. Eastman
Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997).

       While our Court has never addressed the precise question,
the logic of our decision in Robinson v. City of Pittsburgh, 120
F.3d 1286 (3d Cir. 1997), points toward the majority approach. In
Robinson, we held that “[r]etaliatory conduct other than discharge
or refusal to rehire” violates Title VII when it “alters the
employee’s ‘compensation, terms, conditions, or privileges of
employment,’ deprives him or her of ‘employment opportunities’,
or ‘adversely affect[s] his [or her] status as an employee.’” Id. at
1300 (quoting 42 U.S.C. § 2000e-2(a)) (alterations in original). Put
another way, § 2000e-3(a) prohibits a quantum of discrimination
coterminous with that prohibited by § 2000e-2(a). Id. at 1300-01;
see also Von Gunten, 243 F.3d at 865 (rejecting the Fifth Circuit’s
ultimate employment decision standard because “conformity
between the provisions of Title VII is to be preferred”) (internal
quotation omitted).

        Under § 2000e-2(a), the cognizability of a discrimination
claim founded upon a hostile work environment is well-established.
See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (sex);
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986) (same);
Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005) (race);
Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir. 2005) (national
origin); Abramson v. William Paterson Coll. of New Jersey, 260
F.3d 265, 276-77 n.5 (3d Cir. 2001) (religion). The statutory basis
for these claims is the notion that discriminatory ridicule or abuse
can so infect a workplace that it alters the terms or conditions of the
plaintiff’s employment. See Meritor, 477 U.S. at 67. If harassment
can alter the terms or conditions of employment under § 2000e-2,
then Robinson teaches that the same is true under § 2000e-3. See
Robinson, 120 F.3d at 1300-01. We thus hold that both provisions
can be offended by harassment that is severe or pervasive enough

                                  6
to create a hostile work environment.

                                 B.

       In light of the consistency between the two provisions, our
usual hostile work environment framework applies equally to
Jensen’s claim of retaliatory harassment. Thus, Jensen must prove
that (1) she suffered intentional discrimination because of her
protected activity;2 (2) the discrimination was severe or pervasive;3


       2
        This element differs in wording, but not in substance, from
our usual retaliation test’s requirement of a “causal connection”
between the protected activity and the adverse employment action.
See Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995). By
showing a causal link, the plaintiff raises an inference of retaliatory
intent and satisfies her initial burden under the McDonnell Douglas
framework. See Krouse v. American Sterilizer Co., 126 F.3d 494,
500-01 (3d Cir. 1997). The ultimate question in any retaliation case
is an intent to retaliate vel non. See Shaner v. Synthes, 204 F.3d
494, 501 n.8 (3d Cir. 2000).
       3
        We have often stated that discriminatory harassment must
be “pervasive and regular.” See, e.g., Cardenas v. Massey, 269
F.3d 251, 260 (3d Cir. 2001); West v. Philadelphia Elec. Co., 45
F.3d 744, 753 (3d Cir. 1995); Andrews v. City of Philadelphia, 895
F.2d 1469, 1482 (3d Cir. 1990). But the Supreme Court’s standard
is “severe or pervasive.” Pa. State Police v. Suders, 542 U.S. 129,
133 (2004) (emphasis added); Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 116 (2002); Harris, 510 U.S. at 21; Meritor,
477 U.S at 67. The difference is meaningful, and the Supreme
Court’s word controls, so we use the severe or pervasive standard
here. See Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998) (“[I]solated incidents (unless extremely serious) will not
amount to discriminatory changes in the terms and conditions of
employment.”) (emphasis added, internal quotation omitted); see
also 2 Charles A. Sullivan, Michael J. Zimmer & Rebecca Hanner
White, Employment Discrimination Law and Practice 455 (3d ed.
2002) (“The disjunctive phrasing means that ‘severity’ and
‘pervasiveness’ are alternative possibilities: some harassment may
be severe enough to contaminate an environment even if not

                                  7
(3) the discrimination detrimentally affected her; (4) it would have
detrimentally affected a reasonable person in like circumstances;
and (5) a basis for employer liability is present. See Weston v.
Pennsylvania, 251 F.3d 420, 426 (3d Cir. 2001); Robinson, 120
F.3d at 1300-01.

        The test’s first element concretely expresses the principle
that Title VII is not “a general civility code for the American
workplace.” See Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 80-81 (1998). Many may suffer severe or pervasive
harassment at work, but if the reason for that harassment is one that
is not proscribed by Title VII, it follows that Title VII provides no
relief. This first step, therefore, requires us to identify what
harassment, if any, a reasonable jury could link to a retaliatory
animus. See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280-
81 (3d Cir. 2000); Shaner v. Synthes, 204 F.3d 494, 500-01 (3d
Cir. 2000); cf. Aman v. Cort Furniture, 85 F.3d 1074, 1081-83 (3d
Cir. 1996).

       In determining whether conduct was retaliatory, our cases
have tended to focus on two factors: (1) the “temporal proximity”
between the protected activity and the alleged discrimination and
(2) the existence of “‘a pattern of antagonism in the intervening
period.’” See Abramson v. William Paterson Coll. of New Jersey,
260 F.3d 265, 288 (3d Cir. 2001) (quoting Woodson v. Scott Paper
Co., 109 F.3d 913, 920-21 (3d Cir. 1997)). Timing alone raises the
requisite inference when it is “unusually suggestive of retaliatory
motive,” but even if “temporal proximity. . . is missing, courts may
look to the intervening period for other evidence of retaliatory
animus.” Krouse v. American Sterilizer Co., 126 F.3d 494, 503-04
(3d Cir. 1997). Despite this focus, “[t]hese are not the exclusive
ways to show causation, as the proffered evidence, looked at as a
whole, may suffice to raise the inference.” Farrell, 206 F.3d at 280;
see also Kachmar v. SunGard Data Systems, Inc., 109 F.3d 173,
178 (3d Cir. 1997) (“The element of causation, which necessarily
involves an inquiry into the motives of an employer, is highly
context-specific.”).


pervasive; other, less objectionable, conduct will contaminate the
workplace only if it is pervasive.”).

                                 8
        This same principle applies in our hostile work environment
cases under § 2000e-2(a). There, we have deemed it improper to
isolate incidents of facially neutral harassment and conclude, one
by one, that each lacks the required discriminatory animus. See,
e.g., Cardenas, 269 F.3d at 260-61; Aman, 85 F.3d at 1081-84.
Because “it is often difficult to determine the motivations of an
action[,] . . . . [the] discrimination analysis must concentrate not on
individual incidents, but on the overall scenario.” Andrews, 895
F.2d at 1484.

        With these principles in mind, we turn to the summary
judgment record before us. The prime antagonist in Jensen’s
retaliation claim is letter carrier Joe Sickler. Shortly after Waters’s
transfer to the Ashley office, Sickler called Jensen “the [obscenity]
who got [Waters] in trouble;” he also stated that when a new
supervisor came Jensen would have to get off her “fat [obscenity].”
App. 65. Because these insults directly relate to Jensen’s
complaint against Waters, they raise an obvious inference of
retaliatory animus. Cf. Andrews, 895 F.2d at 1482 n.3 (“The intent
to discriminate on the basis of sex in cases involving. . . sexually
derogatory language is implicit, and thus should be recognized as
a matter of course.”). More important, these statements may
provide a window into Sickler’s thinking throughout the 19-month
barrage of offensive comments. If Sickler’s conduct were viewed
in isolation, his motives would be unclear, but his earlier
statements provide a reasonable basis for thinking that the later
abuse resulted from latent hostility to Jensen’s whistleblowing.
Thus, the record as a whole supports a finding that all of Sickler’s
harassment was based on a retaliatory animus.

       Jensen also alleges physical threats by letter carrier Ed
Jones. Like Sickler’s loud and frightening clap, Jones’s alleged
assaults are facially neutral. Nonetheless, the record contains other
evidence from which a factfinder could infer motive. First, before
the Waters incident, Jensen and Jones were friends; shortly after it,
Jones menaced her with heavy equipment. This temporal
proximity between the protected activity and Jones’s changed
behavior is probative of a retaliatory intent. See Abramson, 260
F.3d at 288. Second, the record contains evidence that Jones
expressed disagreement with the decision to remove Waters. This
statement, when combined with the sudden shift in behavior,

                                  9
permits an inference that Jones’s newfound hostility resulted from
Jensen’s protected activity.

        In addition to Sickler’s habitual insults and Jones’s
threatening use of postal equipment, Jensen alleges that vandals
twice keyed her car, spit on it, and spilled coffee on it. Standing
alone, these acts of vandalism contain no indicia of retaliation. But
as with the other events, the analysis changes significantly upon
consideration of the overall scenario. See Andrews, 895 F.2d at
1482 n.3. Though the vandalism did not begin until approximately
one year after Jensen reported Waters, Sickler’s berating of Jensen
allegedly continued even 19 months after the Waters incident. If
true, and we assume it to be so on summary judgment, this
intervening antagonism tends to show that these seemingly
unrelated incidents were components of an integrated pattern of
retaliation. See Abramson, 260 F.3d at 288-89; cf. Aman, 85 F.3d
at 1083 (concluding that, in light of racially abusive remarks, a
reasonable jury could infer that facially neutral acts like stealing
time cards were “part of a complex tapestry of discrimination”). In
sum, a reasonable jury could find that all the alleged coworker
harassment—namely, Sickler’s insults, Jones’s physical threats,
and vehicle damage caused by unknown vandals—were the
product of intentional discrimination because of Jensen’s protected
activity.

       Having identified the conduct that a reasonable jury could
label retaliatory, our next task is to measure the harassment’s
severity or pervasiveness. As stated earlier, this inquiry has both
subjective and objective components. See Faragher, 524 U.S. at
787. We can quickly dispense with the subjective prong. At her
deposition, Jensen testified that her coworkers’ actions caused
anxiety attacks, trips to the emergency room, and stress-induced
use of her sick leave. App. 129-30, 136-38. This evidence would
support a finding that Jensen subjectively viewed the work
environment to be hostile. See Harris, 510 U.S. at 21-22.

       Of course, Jensen’s subjective reaction to the discrimination
is not enough. She must also show an objectively hostile work
environment. Two elements of our test relate to this question. The
second prong requires severe or pervasive harassment; the fourth
requires discrimination that would have detrimentally affected a

                                 10
reasonable person. See ante at 7-8. When applied, they coalesce
into a single inquiry: did the plaintiff suffer retaliatory harassment
severe or pervasive enough to “alter the conditions of [her]
employment and create an abusive working environment”? See
Meritor, 477 U.S. at 67; Robinson, 120 F.3d at 1300-01.

        Like the requirement of intentional discrimination, the need
for an objectively abusive work environment further distinguishes
Title VII from a generalized “civility code.” Oncale, 523 U.S. at
81. The statute prohibits severe or pervasive harassment; it does
not mandate a happy workplace. Occasional insults, teasing, or
episodic instances of ridicule are not enough; they do not
“permeate” the workplace and change the very nature of the
plaintiff’s employment. See Faragher, 524 U.S. at 788; Harris, 510
U.S. at 21. Factors to be weighed include “the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.” Harris, 510 U.S. at 23. No one factor is dispositive,
and the analysis must focus on the “totality of the circumstances.”
Andrews, 895 F.2d at 1482.

        While the severe or pervasive standard applies equally to §
2000e-2 and § 2000e-3, it is especially crucial in the retaliation
context. When one employee makes a charge under Title VII
against another, some strain on workplace relationships is
inevitable. See Von Gunten, 243 F.3d at 870. Sides will be chosen,
lines will be drawn, and those who were once the whistleblower’s
friends may not be so friendly anymore. See Noviello, 398 F.3d at
92-93. But what the statute proscribes is retaliation, not loyalty to
an accused coworker or a desire to avoid entanglement in
workplace controversy. Id.; see also Brooks v. City of San Mateo,
229 F.3d 917, 929 (9th Cir. 2000) (“Because an employer cannot
force employees to socialize with one another, ostracism suffered
at the hands of coworkers cannot constitute an adverse employment
action.”). Thus, while we must consider the totality of the
circumstances, some circumstances do not affect our analysis
because they are not retaliatory.

      For example, at her deposition, Jensen frequently stated that
coworkers subjected her to the silent treatment. See, e.g., Doc. 23,

                                 11
Exhibit D, Jensen Deposition at 97 (“I mean, the whole
environment was different after I reported it, okay. People who
used to talk to me didn’t talk to me.”). A cold shoulder can be
hurtful, but it is not harassment. See Brooks, 229 F.3d at 929.

        Mere expressions of opinion are also not retaliatory. For
example, Jensen overheard Sickler discussing “a petition. . . to
bring Carl [Waters] back and that Carl shouldn’t have to apologize
for anything.” App. 65-66. On another occasion, Ed Jones told
Jensen that he disagreed with the decision to fire Waters. App. 114-
16. These statements are useful to Jensen because they tend to
show that a retaliatory motive animated other behavior by Sickler
and Jones. But they have no independent weight in our “severe or
pervasive” analysis. If Jones thought Waters had been treated
harshly, he was entitled to express his opinion; if Sickler wanted to
start a petition, he had every right to do so. Title VII prohibits
retaliation against accusers, not support for the accused.

        Nonetheless, the record contains evidence of harassment
that a jury might well find severe or pervasive. First, Sickler
berated Jensen with retaliatory insults two to three times per week
for 19 months, and the significance of these remarks lies in their
pounding regularity. See Harris, 510 U.S. at 23. Second, the
record contains evidence of more than just insults. Jensen also
testified to an unspecified number of physical threats by Ed Jones
and at least four instances of property damage to her vehicle. These
incidents’ severity and the insults’ frequency combine to raise a
material question of fact as to whether retaliatory harassment
“permeated” the workplace and changed the terms or conditions of
Jensen’s employment. See id. at 21.

        With that, we come to the fifth and final prong of the
analysis: employer liability. Under Title VII, much turns on
whether the harassers are supervisors or coworkers. If supervisors
create the hostile environment, the employer is strictly liable,
though an affirmative defense may be available where there is no
tangible employment action. Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 765 (1998); Faragher, 524 U.S. at 807-08. When
coworkers are the perpetrators, the plaintiff must prove employer
liability using traditional agency principles. Weston, 251 F.3d at
426-27; Bouton v. BMW of N. Am., Inc., 29 F.3d 103, 106-07 (3d

                                 12
Cir. 1994). Typically, the plaintiff in a coworker harassment case
argues for direct liability on a theory of “negligent failure to
discipline or fire, or failure to take remedial action upon notice of
harassment.” See Bouton, 29 F.3d at 106 (citing Restatement
(Second) of Agency § 219(2)(b)). That is what Jensen argues here,
so we will analyze this case as one of coworker harassment. See Pl.
Br. at 26.4
        In order to establish employer negligence, the plaintiff must
show that management knew or should have known about the
harassment, but “failed to take prompt and adequate remedial
action.” Andrews, 895 F.2d at 1486. An effective remedy—one
that stops the harassment—is adequate per se. Knabe v. Boury
Corp., 114 F.3d 407, 411-12 n.8 (3d Cir. 1997). Even if not


       4
         Though Jensen does not argue that the Faragher/Ellerth
analysis applies, the proper standard may be an open question.
After Waters’s transfer to the Ashley office, supervisor Rick
Honeychurch (at the apparent direction of Chris Moss) moved
Jensen’s workspace to Waters’s old desk. Jensen claims this was
done “to put [her] in a position of extreme vulnerability where
coworkers supportive of Waters would foreseeable [sic] harass
[her].” Pl. Br. At 8. Assuming arguendo that the record contains
evidence to support this inference, two questions arise. First, which
liability standard applies when a supervisor intentionally facilitates
coworker harassment? Second, is Rick Honeychurch (or, perhaps,
Chris Moss) a “supervisor” for purposes of Faragher/Ellerth? See
Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1033 (7th
Cir. 1998) (stating that courts must “distinguish[] employees who
are supervisors merely as a function of nomenclature from those
who are entrusted with actual supervisory powers”); Compare Id.
at 1034 (holding that a “supervisor” must have “at least some”
authority to “hire, fire, demote, promote, transfer, or discipline an
employee”), with Mack v. Otis Elevator Co., 326 F.3d 116, 125 (2d
Cir. 2003) (disagreeing with Parkins and holding that a
“supervisor” is a person given authority that “enabled or materially
augmented [his or her] ability. . . to create a hostile work
environment”). These are interesting questions, but we need not
decide them. The parties do not raise them, and Jensen survives
summary judgment under the more onerous coworker harassment
standard.

                                 13
effective, an employer’s remedial measure is nonetheless adequate
if “reasonably calculated” to end the harassment. Id. at 412-13
(internal quotation omitted). Moreover, the remedy need not
include discipline to be adequate. In Knabe, for example, the
employer found insufficient evidence of harassment to justify
disciplinary measures against the offending employee. Id. at 413.
Nonetheless, because the employer promptly met with the alleged
harasser and informed him of the company’s strong policy against
sexual harassment, we found the remedy adequate as a matter of
law. Id.

       Here, as in Knabe, the defendant held a meeting with the
principal harasser and discussed the allegations. See id.
Furthermore, this meeting was effective—it stopped the
harassment. See id. at 412 n.8. But to be reasonable the remedy
must be both adequate and prompt. Andrews, 895 F.2d at 1486.
Though Moss and Honeychurch claim to have had informal
discussions with Sickler, the formal meeting between management,
union officials, and Sickler did not occur until April or May of
2003. The effectiveness of so modest a remedial measure raises a
question as to why, despite Jensen’s repeated complaints, it took 19
months of harassment and the intervention of a new supervisor to
make it happen. Because of this delay, we cannot deem the Postal
Service’s response prompt and adequate as a matter of law.

        In sum, the record raises genuine issues of material fact as
to all five elements of our hostile work environment test. We
therefore reverse the District Court’s order granting summary
judgment for the defendant on the retaliation claim.

                                III.

       The District Court also granted summary judgment for the
defendant on Jensen’s sex discrimination claim. Despite the
consistency between § 2000e-2(a) and § 2000e-3(a), and despite
the fact that both Jensen’s claims arise from a single series of
events, separate analysis is still necessary. Section 2000e-2(a)
makes it an unlawful employment practice to discriminate based on
“race, color, religion, sex, or national origin.” As such, this claim
stands or falls on whether Jensen suffered sex discrimination severe
or pervasive enough to have changed the terms or conditions of her

                                 14
employment. Harris, 510 U.S. at 21.

        Our task, then, is to identify the alleged harassment that a
reasonable jury might deem intentional discrimination because of
sex. Weston, 251 F.3d at 426. When harassment is facially sexual,
i.e., when it “involv[es] sexual propositions, innuendo,
pornographic materials, or sexually derogatory language,” an
inference of sex-based intent will usually arise. Andrews, 895 F.2d
at 1482 n.3; see also Oncale, 523 U.S. at 80. But discrimination
comes in many forms, and it need not be overtly sexual to be
actionable. See Andrews, 895 F.2d at 1485. As with our search for
a retaliatory animus, we do not view each incident in isolation, but
attempt to divine the existence of sex-based intent by considering
the “overall scenario.” Id. at 1484.

       Both parties agree that Waters’s proposition raises an
inference of intentional sex discrimination. Waters told Jensen to
come to his house for the purpose of “mak[ing] love.” The
inference that he did so because Jensen is a woman arises as a
matter of course. See id. at 1482 n.3.

        The disputed terrain is whether any of the harassment that
followed the Waters incident—harassment that we have already
decided a reasonable jury might find retaliatory—was sex
discrimination. Jensen argues that because the Waters phone call
triggered all the harassment that followed, it was all “because of
. . . [her] sex.” Pl. Br. at 13-14. The defendant contends that,
outside the Waters incident, the record contains no indicia of sex-
based intent.

       As an abstract matter, retaliation against a person based on
the person’s complaint about sexual harassment is not necessarily
discrimination based on the person’s sex. If the individuals
carrying out the harassment would have carried out a similar
campaign regardless of the sex of the person making the complaint,
the harassment, while actionable as illegal retaliation, would not
also be actionable as discrimination based on sex. In reality,
however, when a woman who complains about sexual harassment
is thereafter subjected to harassment based on that complaint, a
claim that the harassment constituted sex discrimination (because
a man who made such a complaint would not have been subjected

                                15
to similar harassment) will almost always present a question that
must be presented to the trier of fact. In such a situation, the
evidence will almost always be sufficient to give rise to a
reasonable inference that the harassment would not have occurred
if the person making the complaint were a man. The difficult task
of determining whether to draw such an inference in a particular
case is best left to trial.

       For these reasons, we hold that the plaintiff’s claim of sex
discrimination, like her claim of retaliation, should not have been
rejected at the summary judgment stage.

                               IV.

       We reverse the District Court’s judgment and remand the
case for further proceedings.




                                16
