                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-16-2003

Suders v. Easton
Precedential or Non-Precedential: Precedential

Docket 01-3512




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                                  PRECEDENTIAL

                                             Filed April 16, 2003

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                           No. 01-3512


                    NANCY DREW SUDERS,
                                      Appellant,
                                 v.
    ERIC D. EASTON, WILLIAM D. BAKER, ERIC B.
  PRENDERGAST, VIRGINIA SMITH ELLIOTT, AND THE
           PENNSYLVANIA STATE POLICE

      On Appeal from the United States District Court
          for the Middle District of Pennsylvania
  District Court Judge: The Honorable Sylvia H. Rambo
                     (00-CV-01655)

                   Argued on April 11, 2002
    Before: McKEE and FUENTES, Circuit Judges, and
                   POGUE,* Judge

                (Opinion Filed: April 16, 2003)

                         Don Bailey (argued)
                         4311 N. 6th Street
                         Harrisburg, PA 17110
                           Attorney for Appellant

* The Honorable Donald C. Pogue, United States Court of International
Trade, sitting by designation.
                                    2


                           D. Michael Fisher
                           Attorney General
                           Sarah C. Yerger (argued)
                           Deputy Attorney General
                           Calvin R. Koons
                           Senior Deputy Attorney General
                           John G. Knorr, III
                           Chief Deputy Attorney General
                           Chief, Appellate Litigation Section
                           Office of the Attorney General
                           15th Floor, Strawberry Square
                           Harrisburg, PA 17120
                             Attorneys for Appellees

                    OPINION OF THE COURT

FUENTES, Circuit Judge:
   In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742
(1998) and Faragher v. City of Boca Raton, 524 U.S. 775
(1998), the Supreme Court addressed the scope of the
vicarious liability of an employer for the discriminatory and
harassing conduct of its supervisors in the context of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et
seq. (“Title VII”). The Court also sought to clarify the
confusion among the Courts of Appeals as to the scope and
proper grounds for such liability. To that end, the Court
held that an employer shall be strictly liable to a victimized
employee for an actionable hostile work environment
created by a supervisor, when the discrimination or
harassment at issue results in a “tangible employment
action.”1 Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at
1. The concept of a tangible employment action is distinct from that of a
materially adverse employment action which is a necessary element of a
prima facie case under Title VII. See Robinson v. City of Pittsburgh, 120
F.3d 1286, 1300 (3d Cir. 1997); see also St. Mary’s Honor Center v.
Hicks, 509 U.S. 502, 506-07 (1993). Litigants, and oftentimes courts,
confuse the two. See Herrnreiter v. Chicago Housing Authority, 315 F.3d
742, 743-44 (7th Cir. 2002) (discussing courts’ use of the terms “tangible
employment action” and “materially adverse employment action.”).
Courts have yet to address the differences between them. It is worth
noting generally that because Ellerth and Faragher create a rule of strict
liability, we understand a tangible employment action as being a
narrower, more restricted category of actions occurring in the workplace.
                              3


807. Furthermore, the Court defined a tangible employment
action in general, categorical terms: “a significant change in
employment status,” often, but not always, resulting in
economic injury. Ellerth, 524 U.S. at 761-62; see also
Faragher, 524 U.S. at 808. A tangible employment action
was also defined by reference to a non-exclusive list of
possible actions: “hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or
a decision causing a significant change in benefits.” Ellerth,
524 U.S. at 761; see also Faragher, 524 U.S. at 790. When
no tangible employment action results, the employer may
still be liable, but it may raise an affirmative defense to
liability or damages. The affirmative defense has two
components: “(a) that the employer exercised reasonable
care to prevent and correct promptly any sexually
harassing behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to
avoid harm otherwise.” Ellerth, 524 U.S. at 765; Faragher,
524 U.S. at 807.
   Against this backdrop, the matter on appeal raises novel
issues of law of critical importance to civil actions brought
in our Circuit pursuant to Title VII. Among those we are
asked to review, we address today the issue of whether a
constructive discharge constitutes a tangible employment
action, such that the affirmative defense to the liability of
an employer for the discriminatory conduct of its
supervisors would not be available to the employer.
Although our analysis is informed by the Supreme Court’s
decisions in Ellerth and Faragher, our ruling today
necessarily reaches issues that were not specifically
addressed by the Court in either of those two decisions.
   In the underlying action, plaintiff Nancy Drew Suders
(“Suders”) alleged that she was subjected to a sexually
hostile work environment and discriminated against on the
basis of her age and political affiliation. She also contended
that she was constructively discharged. Suders identified
three officers of the Pennsylvania State Police (“PA State
Police”) as the primary harassers and sought to hold the PA
State Police vicariously liable for the actions of its agents.
After the close of discovery, defendants moved for summary
                                  4


judgment. The District Court granted the motion in its
entirety. As to her claim of a sexually hostile work
environment, the District Court found that, although
Suders had raised genuine issues of material fact as to
each requisite element, the PA State Police was entitled to
raise the affirmative defense set forth in Ellerth and
Faragher. Having found that the PA State Police met its
burden of establishing the affirmative defense, the District
Court granted summary judgment as to Suders’s claim of a
sexually hostile work environment. The Court failed to
address Suders’s claim of constructive discharge and
whether such a claim would affect the availability of the PA
State Police’s assertion of the affirmative defense.
  We will reverse the District Court’s judgment as to
Suders’s claim of a sexually hostile work environment. In so
doing, we hold that a constructive discharge, when proved,
constitutes a tangible employment action within the
meaning of Ellerth and Faragher. Consequently, when an
employee has raised a genuine issue of material fact as to
a claim of constructive discharge, an employer may not
assert, or otherwise rely on, the affirmative defense in
support of its motion for summary judgment.

                                  I.
                   2
A.   Background
  Suders is a wife and mother of three children. From
approximately 1988 until her employment with the PA State
Police, Suders was Chief Deputy Sheriff and Secretary to
the Fulton County Sheriff. She had a wide array of
responsibilities,    including   bookkeeping,  transporting
prisoners, serving warrants, and administering special
programs. Suders also served as an active member of the
local chapter of the Republican Party. In connection with
her political activities, she became acquainted with Mikael
Fix, the Republican County Chairman, and Robert

2. In our review of the factual background, we must resolve all factual
doubts and draw all reasonable inferences in favor of Suders, the party
opposing the motion for summary judgment. See Aman v. Cort Furniture
Rental Corp., 85 F.3d 1074, 1077 n.1 (3d Cir. 1996).
                             5


Jubelirer, a State Senator. Sometime in 1998, these
individuals suggested to Suders that she apply for an open
position with the PA State Police. When she decided to
apply, Chairman Fix assisted Suders in her application.
  During the pendency of her application and before
accepting a position, Suders heard from the Fulton County
Sheriff that officers of the PA State Police were opposed to
her candidacy because they viewed her as a political
appointment. The extent to which Republican party officials
intervened on behalf of Suders is unclear. Nevertheless,
Chairman Fix eventually told Suders that the PA State
Police had approved her application.
  Suders accepted a position as a police communications
operator (“PCO”) with the PA State Police and commenced
her employment on or about March 23, 1998, at the
McConnellsburg barracks. Her employment began with a
probationary period, during which Suders worked alongside
another PCO. In June 1998, Suders attended a formal, two-
week training program, after which she undertook the
duties of a PCO by herself.
   Starting from her probationary period and steadily
escalating after her two-week training period, Suders
alleged that she suffered mistreatment and sexual
harassment so severe that she ultimately felt compelled to
resign on August 20, 1998. She recounts several instances
of name-calling, repeated episodes of explicit sexual
gesturing, obscene and offensive sexual conversation, and
the posting of vulgar images. According to Suders, the
following defendants were the main perpetrators of the
sexual harassment that she allegedly suffered: Sergeant
Eric D. Easton (“Easton”), Station Commander of the
McConnellsburg barracks; Patrol Corporal William D. Baker
(“Baker”); and Corporal Eric B. Prendergast (“Prendergast”).
  As Station Commander, Sergeant Easton was responsible
for the day-to-day supervision of the McConnellsburg
barracks. Even before she commenced her employment
with the PA State Police, Suders encountered problems with
Easton. Easton told Suders that he had some concerns
about her and that anything she would say would simply
be her word against his. Suders also recalled that every
                                   6


time she would go into Easton’s office, “he would bring up
[the subject of] people having sex with animals. . . . [T]hat’s
all the man wanted to talk about.” Suders v. Easton, No.
00-CV-1655, slip op., at 3 (M.D. Pa. Aug. 16, 2001) (the
“Decision”) (quotations and citations omitted). Easton and
Prendergast often had discussions in front of Suders, and
on one occasion, Easton stated that “if someone had a
daughter, they should teach her how to give a good blow
job!” App. at 151. Easton once commented to Suders that
his wife had small breasts.
  Easton also made disparaging remarks about Suders’s
age. He commented to Suders that “[i]t is awful getting old,
isn’t it Nancy?” Decision, at 2 (quotations and citations
omitted). Easton also remarked that “a 25-year-old could
catch on faster than [Suders] could.” Id. at 3 (quotations
and citations omitted).
   The sexually charged nature of Easton’s conduct toward
Suders was not limited to conversation. She was offended
“when Defendant Easton, wearing spandex shorts, would
sit down in the chair [near Plaintiff ’s work space], put his
hands behind his head and spread his legs apart.” Id.
(quotations and citations omitted). She claimed that Easton
would leer at her. Suders conceded that Easton never made
any overt sexual advances towards her, but she had no
idea “what he was going to do.” Id. (quotations and citations
omitted). Suders avoided Easton to the extent possible.
   Easton did not deny making many of the statements
above; instead he claimed that Suders misinterpreted them.
As to the statements concerning Suders’s age, Easton
allegedly made them in order to defend Suders and to
explain why she might be having trouble catching on to the
job. With regard to the statements concerning bestiality and
oral sex instruction, Easton claimed that they pertained to
actual investigations. Easton also noted that Suders was
generally disorganized, frequently late for work, and easily
overwhelmed by her job responsibilities. When he
attempted to offer constructive criticism, he claimed that
Suders did not handle it well.
  As a Patrol Corporal at the McConnellsburg barracks,
defendant Baker also had a supervisory role at the station.3

3. Sergeant Easton explained that “[e]ach corporal had some similar
duties as far as running the shift, responding to incidents depending on
                                   7


According to Suders, Baker was responsible for the most
inflammatory harassment that she suffered. Soon after she
began working at the communications desk by herself,
Suders recalled that Baker had a habit of making obscene
gestures to her, as many as five to ten times per night
throughout her five-month tenure at the station. These
gestures followed the same pattern. In an apparent
imitation of a move popularized by televised wrestling,
Baker would “cross his hands, grab hold of his private
parts and yell, suck it.” App. at 65. Suders recalled that
“[t]he man did this, and he would beat on it. He would beat
his hands on his crotch too and yell suck it. He would ask
me to do this garbage. . . . All he wanted to do was play
with his crotch.” Id. at 65-66. Suders claimed that Baker
kept a picture near his work space of a professional
wrestler performing this same gesture. In between these
offensive acts, Baker would take time to rub his rear end in
front of her and remark “I have a nice ass, don’t I?” Id. at
67. Another time, Baker announced to Suders, without
invitation, that he intended to pierce his genitals and that
his wife would pierce her nipple. Baker also referred to
Suders as “momma.” Decision, at 5 (quotations and
citations omitted).
   On one occasion, Suders confronted Baker about his
offensive conduct, specifically about his repeated gestures.
She told him “I don’t think you should be doing this.” App.
at 66. According to Suders, Baker responded by grabbing a
straight back chair in the communications room, jumping
onto it, and repeating the move, including the verbal
exclamation.
  As a Corporal, defendant Prendergast shared some
supervisory authority with Baker.4 Suders contended that

the severity of the incident, and each corporal had some specialized
duties. . . . Then each corporal also had specific personnel assigned to
them to supervise.” App. at 215.
4. As Easton noted, “Eric Prendergast I believe was the corporal who was
assigned to [Suders], but if he was not working say a three to eleven
shift, then it would be whatever corporal was working that shift would
be in charge of the shift.” App. at 224.
                              8


Prendergast verbally harassed her day after day. He called
Suders a liar and told her that “the village idiot could do
her job.” App. at 69. She also testified that Prendergast
would wear black gloves, pound on the furniture in the
communications room, and intimidate her. According to
Suders’s complaint filed on September 18, 2000,
Prendergast allegedly told her that she would be “the last
political appointee who had a job there at the substation.”
Id. at 30.
   As often happens in cases involving allegations of sexual
harassment, the defendants’ recollections of the events
differ from Suders’s. The testimony of the PA State Police
officers is notable, however, for its internal inconsistencies
and ambiguities. For instance, Baker adamantly denies that
he ever performed the wrestling gesture in front of Suders.
When asked if he ever saw this harassment take place,
however, Prendergast seemed to deny any recollection at
first, but then conceded that he may have seen Baker
perform it on one occasion. Id. at 252.
   As noted above, Suders attempted to confront at least
one of the defendants, Baker, by asking him to stop the
offensive conduct. She did not, however, report any of the
incidents to anyone else at the McConnellsburg barracks.
In her own words, Suders explained that “there was no one
on that station that I could go to. I had a sergeant there
who was talking about abusing children and bestiality.
There was no way I was going to be able to tell him. There
was nobody.” Id. at 68.
  In the summer of 1998, the relationship between Suders
and the defendants rapidly deteriorated in a series of events
that led to her departure. It began when an accident file
turned up missing. Baker asked Suders if she had the
misplaced file, and when she responded that she did not,
Prendergast accused her of taking the file home. Decision,
at 5.
  At this point, the situation was critical enough that
Suders     sought    help   from   persons  outside  the
McConnellsburg barracks. During her formal training in
June 1998, Suders approached defendant Virginia Smith-
Elliott (“Smith-Elliott”), who, in her capacity as Equal
                             9


Employment Opportunity Officer of the PA State Police, had
taught a training class on sexual harassment that Suders
had attended. Without mentioning details, Suders told
Smith-Elliott that she might need some help. Smith-Elliott
gave Suders her phone number. Neither Suders nor Smith-
Elliott followed up on the matter.
   On July 22, 1998, Suders received a supervisor’s
notation for failing to complete an assignment given to her
back in May. Days later, on July 26, 1998, Suders was
reprimanded again, ostensibly because she had not
properly disseminated information about an escaped
convict from Ohio. Suders claimed that she received advice
from someone at the station that she need not worry about
the message because the escapee was from Ohio. Based on
that advice, Suders simply placed the information in a
Corporal’s bin. During this time period, the sexual
harassment noted above continued unabated.
  On or about August 18, 1998, Suders reached a breaking
point. She contacted Smith-Elliott again, and this time,
Suders specifically mentioned that she was being harassed
and that she was afraid. According to Suders, Smith-Elliott
was insensitive and unhelpful. Smith-Elliott instructed her
to file a complaint on a standard form without telling
Suders where to obtain the form. Suders attempted to find
the correct form in employee manuals, but never found it.
She was fearful that Prendergast was watching her every
move. For her part, Smith-Elliott acknowledged that Suders
contacted her around then, but that Suders never
mentioned     any    incidents   of   sexual   harassment,
complaining only of age and political affiliation
discrimination. Smith-Elliott also recalled that she
promised to send Suders the proper complaint form.
   Two days after the phone conversation with Smith-Elliott,
one final incident proved to be the last straw. Suders
alleged that, on August 20, 1998, the other officers set her
up and falsely accused her of theft. The events leading up
to the incident occurred as follows. Officers of the PA State
Police were required to take an exam designed to measure
computer skills. The results were supposed to be sent to
Hollidaysburg, where the department in charge of officer
education was located. Suders took the exam several times,
                              10


and each time her supervisors told her that she had failed.
She believed that the officers lied to her about the test
results and that they never sent her test scores to
Hollidaysburg because she found her exams in a set of
drawers in the women’s locker room. Suders contended
that those drawers were not assigned to any specific officer,
while the PA State Police countered that the drawers
contained another PCO’s private belongings.
  At some point, the officers realized that Suders’s test
results were missing. The officers dusted the drawers and
the file inside with a theft detection powder that is invisible
to the eye, but reacts when touched by hand, thereby
turning the hand of a suspected thief blue. Suders testified
that, on that day, she sought to return the papers that she
had earlier obtained. Her hands turned unmistakably blue.
When the officers in the barracks apprehended Suders,
they treated her as they would an accused suspect. She
was handcuffed, photographed, and questioned. She felt
“abused, threatened and held against her will.” Decision, at
7 (quotations and citations omitted).
  Any prospect for reconciliation was now lost. Suders had
prepared a written resignation prior to the events of August
20, 1998 and had been carrying it with her. After the
accusation of theft and the questioning by her supervisors,
Suders tendered her resignation. When Suders attempted
to leave the barracks, Baker told her that she could not
leave because she was a “suspect.” Id. Later, the officers
took Suders into an interrogation room, where Easton
advised Suders of her Miranda rights. After being detained
for further questioning, Suders demanded to be released.
When Suders reiterated her intent to resign, Easton
ultimately permitted her to leave.
B.   The District Court’s Decision
   In the underlying action, Suders asserted that she was
discriminated against on the basis of age, political
affiliation, and sex. Her claims were based on the following
statutes: (1) the Age Discrimination in Employment Act, 29
U.S.C. § 621, et seq. (“ADEA”); (2) Title VII; and (3) the
Pennsylvania Human Relations Act, 43 PA. CONS. STAT. ANN.
§ 951, et seq. (“PHRA”). Suders brought all three claims
                             11


against Easton, Baker, Prendergast, Smith-Elliott, and the
PA State Police.
  After the close of discovery, defendants moved for
summary judgment. The District Court granted the motion
in its entirety. First, the District Court held that neither
Title VII nor the ADEA contemplates the liability of
individual employees. The Court cited our decisions in
Kachmar v. SunGard Data Systems, Inc., 109 F.3d 173, 184
(3d Cir. 1997), and Sheridan v. E.I. DuPont de Nemours &
Co., 100 F.3d 1061, 1077 (3d Cir. 1996), in granting
summary judgment in favor of the individual defendants on
Suders’s Title VII and ADEA claims.
  With respect to Suders’s ADEA claim against the PA State
Police, the Court held that the Eleventh Amendment barred
the claim against a state agency. Decision, at 12 (citing
Kimel v. Florida Bd. of Regents, 528 U.S. 62, 91 (2000)).
The Court also noted that, because Eleventh Amendment
immunity extends to similar claims based on state law
causes of actions, Suders’s PHRA claim against the PA
State Police was also barred.
  With regard to the PHRA claims against the individual
defendants, the defendants argued that the Eleventh
Amendment immunity enjoyed by the PA State Police also
barred any claim against a state official for actions taken
within the course of employment. Therefore, the defendants
contended that, to the extent that the PA State Police was
immune from Suders’s claim under the PHRA, the
individual defendants were also immune from those claims.
The District Court observed that Suders had not responded
to this argument and, therefore, granted summary
judgment in favor of the individual defendants on the PHRA
claims.
   The District Court’s analysis left Suders with two claims
pursuant to Title VII: her hostile work environment and
constructive discharge claims against the PA State Police.
The Court found that Suders had marshaled enough
evidence to raise a genuine issue of fact as to each of the
following elements of a Title VII action against an employer:
(1) the work environment was sufficiently hostile to
constitute intentional discrimination; (2) the discrimination
                                    12


was pervasive and regular; (3) the defendants’ conduct
detrimentally affected Suders; and (4) the defendants’
conduct was sufficiently hostile to offend a reasonable
person. Decision, at 13-15 (citing Andrews v. City of
Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990)).5
   On the issue of vicarious liability, however, the District
Court proceeded with an analysis of the affirmative defense
set forth in Ellerth and Faragher. In that regard, the Court
found that “as a matter of law . . . [Suders] unreasonably
failed to avail herself of the [PA State Police’s] internal
procedures for reporting any harassment. This is especially
true as [Suders] had personal contact with the Affirmative
Action officer early in her employment, but failed to pursue
this avenue of complaint.” Decision, at 18. Therefore, the
District Court found no genuine issue of material fact as to
the PA State Police’s assertion of the affirmative defense.
The Court thus granted the motion for summary judgment
on Suders’s remaining claim pursuant to Title VII.
  The District Court did not address Suders’s claim of
constructive discharge. As a result, the Court never reached
the issue of whether the claim of constructive discharge
would affect the availability of the affirmative defense
invoked by the PA State Police.

                                    II.
  The District Court had jurisdiction over the underlying
action pursuant to 28 U.S.C. §§ 1331, 1343 and 1367. We
have jurisdiction to review the final order of the District
Court pursuant to 28 U.S.C. § 1291.
   Our review of the District Court’s grant of summary
judgment is plenary. See Doe v. County of Centre, PA, 242
F.3d 437, 446 (3d Cir. 2001). As we have stated in the past,
in the context of summary judgment, we must apply the
same test that the District Court applied. See id.; Levendos
v. Stern Entertainment, Inc., 860 F.2d 1227, 1229 (3d Cir.
1988).
  Pursuant to Rule 56(c) of the Federal Rules of Civil

5. See part III.A, infra, for a discussion of the Andrews test.
                              13


Procedure, a district court may grant a motion for summary
judgment only when “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 a
judgment as a matter of law.” We must view the evidence
presented to the trial court, and any reasonable inferences
drawn therefrom, in the light most favorable to the non-
moving party. See Curley v. Klem, 298 F.3d 271, 276-77 (3d
Cir. 2002). When the factual assertions of the party
opposing the motion conflict with those of the movant, we
must resolve those conflicts in favor of the former. See
Levendos, 860 F.2d at 1229 (citing Jackson v. University of
Pittsburgh, 826 F.2d 230, 232 (3d Cir. 1987), cert. denied,
484 U.S. 1020 (1988)).

                              III.
   Our analysis begins with the specific claim which Suders
appeals, that is, her claim of a sexually hostile work
environment pursuant to Title VII. Then, we address the
propriety of the District Court’s decision to permit the PA
State Police to invoke the affirmative defense to strict
liability.
A. Suders’s Claim        of   a      Sexually   Hostile   Work
Environment
   Title VII makes it unlawful for an employer “to fail or
refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation,      terms,   conditions,   or    privileges  of
employment, because of such individual’s . . . sex.” 42
U.S.C. § 2000e-2(a)(1). In Meritor Savings Bank, FSB v.
Vinson, 477 U.S. 57, 65-67 (1986), the Supreme Court
recognized that an employee who has been sexually
harassed has a cause of action pursuant to Title VII if the
sexual harassment at issue was either a quid pro quo
scenario, or if the harassment was so pervasive that it had
the effect of creating a hostile work environment and of
altering the conditions of employment. In the present case,
Suders alleged a violation of Title VII based on the second
scenario set forth in Meritor: a hostile work environment at
the McConnellsburg barracks.
                                     14


   Shortly after the Supreme Court’s decision in Meritor, we
addressed a number of issues relating to the burgeoning
jurisprudence of sexual harassment. See Andrews, 895
F.2d at 1482. In Andrews, we held that an employee
seeking to bring a hostile work environment claim against
his or her employer must establish the convergence of five
factors: (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 employee; and (4) the discrimination would
detrimentally affect a reasonable person of the same sex in
that position.6 895 F.2d at 1482; see also Knabe v. The
Boury Corp., 114 F.3d 407, 410 (3d Cir. 1997).
  In Andrews, we also discussed a plaintiff ’s burden with
respect to each of the factors. With regard to the first
factor, we noted that intentional discrimination is implicit
in cases involving “sexual propositions, innuendo,
pornographic materials, or sexual derogatory language.”
Andrews, 895 F.2d at 1482 n.3. In such cases, the intent
to discriminate “should be recognized as a matter of
course.” Id. The second factor requires that the “incidents
of harassment occur either in concert or with regularity.”
Id. at 1484 (quotations and citations omitted). The third
factor is a subjective inquiry of whether the particular
plaintiff was demonstrably injured. See id. at 1483. And the
fourth factor injects a requirement of objectivity: it ensures
that employers are held liable only when the work
environment is hostile from the standpoint of a reasonable
person. See id. at 1483 (noting the need to protect
employers from “hypersensitive” employees, but recognizing
“the goal of equal opportunity” and “the walls of
discrimination that deprive women of self-respecting
employment.”).

6. The fifth factor of the Andrews test is respondeat superior liability. Of
course, in the context of the vicarious liability of an employer for the acts
of its supervisors, the analysis under the fifth factor is materially altered
by the Supreme Court’s decisions in Ellerth and Faragher. Accordingly,
we devote Part III.C, infra, to discussing this issue. For present
purposes, our discussion of Suders’s hostile work environment claim is
limited to the first four factors.
                              15


   When assessing the relevant factors, we are reminded to
view the record as a whole and admonished against
focusing on either one particular factor or a specific
incident: “Particularly in the discrimination area, it is often
difficult to determine the motivations of an action and any
analysis is filled with pitfalls and ambiguities. A play
cannot be understood on the basis of some of its scenes
but only on its entire performance, and similarly, a
discrimination analysis must concentrate not on individual
incidents, but on the overall scenario.” Id. at 1484; see also
Knabe, 114 F.3d at 410.
   With these principles in mind, we agree with the District
Court insofar as it held that Suders had raised genuine
issues of material fact as to her claim of a sexually hostile
work environment. Drawing all reasonable inferences in her
favor, Suders established all of the following:
    (1) her own Station Commander had a preoccupation
    with discussing bestiality and oral sex with her;
    (2) Easton’s “conversations” were accompanied by
    leering and suggestive posturing—conduct that Suders
    found offensive;
    (3) Baker routinely engaged in sexually-charged acts
    intended to humiliate or demean Suders, even after he
    was politely asked to stop. Viewed in the most
    generous light, his repeated reenactments of the
    wrestling move were indicative of an immense
    immaturity and could reasonably be perceived as
    innuendo; and
    (4) When not making offensive gestures with his
    crotch, Baker attempted to engage Suders in
    conversations about piercing his genitals.
   Although this brief summary does not catalog all of the
offensive conduct alleged, it is sufficient to show that a
reasonable jury could find that the work environment at the
McConnellsburg barracks was rife with hostility and sexual
innuendo. There is no question that under the standard set
forth in Andrews, Suders has raised genuine issues of
material fact as to the intentional nature of the
discrimination at the McConnellsburg barracks.
                              16


  It is also clear that Suders offered evidence sufficient to
establish a pattern of sexual harassment that was pervasive
and regular. Particularly telling is Baker’s repetition of the
wrestling move five to ten times per shift. In addition,
Easton’s conduct, although not daily, occurred with
regularity. Together, Baker’s and Easton’s conduct is
sufficient to raise a genuine issue of material fact as to the
second factor in Andrews.
   In addition, both the subjective and objective components
of the Andrews test are satisfied here. Because of the
severe and pervasive harassment of her supervising officers,
Suders felt that her only recourse was to draft a resignation
letter. With respect to the objective standard, the District
Court found that “there was enough conduct in the instant
action to raise an issue of fact that the atmosphere was
sufficiently hostile to offend a reasonable person in
Plaintiff ’s position. Most persuasive is Plaintiff ’s testimony
regarding the ‘wrestling move’ that Defendant Baker
allegedly repeated five to ten times during each shift that he
worked with Plaintiff.” Decision, at 14-15.
   Up to this point in the analysis, we are in complete
agreement with the District Court. Suders presented
compelling evidence sufficient to raise genuine issues of
material fact on her claim of a sexually hostile work
environment. We part company with the District Court,
however, in the balance of its analysis relating to the
liability of the PA State Police. Although it concluded that
Suders had marshaled enough evidence to survive the
motion for summary judgment, the District Court
proceeded to consider the affirmative defense set forth in
Ellerth and Faragher. Ultimately, it found that the PA State
Police was entitled to assert the defense and that there were
no issues of fact justifying trial on the merits. Thus, the
Court granted summary judgment as to Suders’s Title VII
claim against the PA State Police.
   We believe that the District Court’s analysis was
fundamentally flawed for two reasons. First, even if the PA
State Police could assert the affirmative defense, disputed
issues of fact relating to the defense preclude summary
judgment here. While the PA State Police contended that it
had an effective remedial program in place to address
                             17


sexual harassment claims, Suders never found the
complaint form necessary to trigger an investigation.
Moreover, Suders contacted Smith-Elliott twice. The first
time, Suders alluded to potential problems and stated that
she might need assistance. No attempt was made to follow
up on Suders’s initial contact. The second time, Suders
contended that Smith-Elliott was entirely unhelpful,
appearing insensitive at times. On this record, it is unclear
whether the PA State Police exercised reasonable care to
prevent or correct the sexual harassment that Suders
claimed she suffered. Accordingly, the grant of summary
judgment on the basis of the affirmative defense was
improper.
  Second, and more importantly, the Court did not
consider Suders’s claim of constructive discharge and
whether a claim of constructive discharge would affect the
availability of the affirmative defense.
B.   Constructive Discharge
   Suders argued that, as a result of the pervasive sexual
harassment and discrimination at the McConnellsburg
barracks, she had no alternative but to resign. In other
words, she contended that her departure, although
voluntary in the strict sense of the word, was a constructive
discharge because of the hostile work environment that she
endured. To the extent that the District Court did not
recognize a claim of constructive discharge, we hold that
the Court erred. The allegations of constructive discharge
were apparent on the face of Suders’s complaint. In the
very first paragraph, Suders alleged that she was “forced to
suffer a termination of employment because she would not
yield to sexual suggestions, innuendoes and solicitatious
[sic] behavior.” App. at 27. She also stated that “when
defendants, by and through [PA State Police] operatives, on
August 20, 1998, threatened plaintiff, she felt she had no
choice but to resign, and did so out of fear.” Id. at 34. The
record is also replete with testimony relating to
harassment, discrimination, false charges of theft, and
Suders’s eventual resignation. Therefore, we will address
the merits of Suders’s claim of constructive discharge based
on the record presented in the District Court, an inquiry
                                  18


that should have been performed in the first instance by
the trial court.
  In Goss v. Exxon Office Systems Co., 747 F.2d 885, 887
(3d Cir. 1984), we first recognized that “acts of
discrimination in violation of Title VII can make working
conditions so intolerable that a reasonable employee would
be forced to resign.” Noting that the Courts of Appeals were
divided as to the findings necessary to support a
constructive discharge claim, we adopted an objective
standard, as opposed to a specific intent standard: “We
hold that no finding of a specific intent on the part of the
employer to bring about a discharge is required for the
application of the constructive discharge doctrine. The
court need merely find that the employer knowingly
permitted conditions of discrimination in employment so
intolerable that a reasonable person subject to them would
resign.” Id. at 888. In adopting the objective standard, we
held that a plaintiff-employee may prevail on a claim of
constructive discharge by establishing that “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. at 887-88 (citations omitted) (emphasis added); see also
Gray v. York Newspapers, Inc., 957 F.2d 1070, 1079 (3d
Cir. 1992) (citing Goss).
  In Goss, we were convinced that the objective standard
had been met because (1) plaintiff, a saleswoman, was
verbally harassed by her supervisor about her plans to have
children; (2) after taking sick leave as a result of a
miscarriage, her sales territory had been taken away and
replaced with a less lucrative territory; and (3) when she
objected, plaintiff was told to either accept the assignment
or resign. 747 F.2d at 888.
   In subsequent decisions, we have elaborated on the
requirements of a constructive discharge claim. For
instance, we have rejected the imposition of an “aggravating
circumstances” requirement often imposed by other Courts
of Appeals.7 Aman, 85 F.3d at 1084 (citing Levendos, 860

7. In that regard, we noted that “we cannot state as a broad proposition
of law that a single non-trivial incident of discrimination can never be
                                   19


F.2d at 1232). Therefore, in Aman, we held that “[t]he fact
that    [plaintiff] had    been    subject   to   continuous
discrimination during her employment could support a
conclusion that she simply had had enough. No other
precipitating facts were legally required.” 85 F.3d at 1084.
  Despite our rejection of an aggravating circumstances
requirement, we have stated that a plaintiff claiming
constructive discharge must demonstrate that the alleged
discrimination surpasses “a threshold of ‘intolerable
conditions.’ ” See Duffy v. Paper Magic Group, Inc., 265 F.3d
163, 169 (3d Cir. 2001); Connors v. Chrysler Financial
Corp., 160 F.3d 971, 976 (3d Cir. 1998). In Connors, we
noted that
     “Intolerability” is not established by showing merely
     that a reasonable person, confronted with the same
     choices as the employee, would have viewed
     resignation as the wisest or best decision, or even that
     the employee subjectively felt compelled to resign;
     presumably every resignation occurs because the
     employee believes that it is in his interest to resign.
     Rather, “[i]ntolerability . . . is assessed by the objective
     standard of whether a ‘reasonable person’ in the
     employee’s position would have felt compelled to
     resign,”—that is, whether he would have had no choice
     but to resign.
160 F.3d at 976 (emphasis in original) (quoting Blistein v.
St. John’s College, 74 F.3d 1459, 1468 (4th Cir. 1996)).

egregious enough to compel a reasonable person to resign. An
employment discrimination plaintiff may simply face a more difficult
burden of proof in establishing the employer’s liability, when relying on
a single discriminatory incident as a basis for arguing the occurrence of
constructive discharge.” Levendos, 860 F.2d at 1232; see also Aman, 85
F.3d at 1084.
  When we decided the appeal in Levendos, at least three Courts of
Appeals had articulated an aggravating circumstances requirement. See
Levendos, 860 F.2d at 1232 n.9 (citing Nolan v. Cleland, 686 F.2d 806,
813 (9th Cir. 1982); Pittman v. Hattiesburg Municipal Separate School
District, 644 F.2d 1071, 1077 (5th Cir. 1981); Clark v. Marsh, 665 F.2d
1168 (D.C. Cir. 1981)).
                              20


   In Clowes v. Allegheny Valley Hospital, 991 F.2d 1159,
1161 (3d Cir.), cert. denied, 510 U.S. 964 (1993), we sought
to refine these requirements further by identifying several
situations that may be indicative of constructive discharge:
(1) a threat of discharge; (2) suggestions or encouragement
of resignation; (3) a demotion or reduction of pay or
benefits; (4) involuntary transfer to a less desirable
position; (5) alteration of job responsibilities; (6)
unsatisfactory job evaluations. Our identification in Clowes
of situations that often accompany constructive discharge
was not intended to be exhaustive; rather the situations
were intended “to illustrate some of the factors on which
plaintiffs claiming constructive discharge have relied.” 991
F.2d at 1161 n.1 (emphasis added); see also Duffy, 265
F.3d at 168 (“[W]e have never made the Clowes factors an
absolute requirement for recovery. . . . The absence of the
factors in Clowes is not necessarily dispositive.”).
Nevertheless, the situations delineated in Clowes have
assisted courts in our Circuit over the years in identifying
meritorious constructive discharge claims. See, e.g., Duffy,
265 F.3d at 168 (“The District Court correctly recognized
that Duffy had failed to demonstrate any of the factors
listed in Clowes.”).
   Furthermore,      we     recognized  another      important
consideration in Clowes that relates to the inquiry of
whether a reasonable person would have felt compelled to
resign: “As other courts of appeals have noted, a reasonable
employee will usually explore such alternative avenues
thoroughly before coming to the conclusion that resignation
is the only option.” 991 F.2d at 1161 (citations omitted). We
underscore that this consideration does not amount to a
quasi exhaustion requirement: “We do not require such
steps to be taken in all cases. An employee may be able to
show working conditions were so intolerable that a
reasonable employee would feel forced to resign without
remaining on the job for the period necessary to take those
steps.” Id. at 1162 n.6. Therefore, it is relevant to a claim
of constructive discharge whether a plaintiff explored
alternative avenues to resolve the alleged discrimination,
but the plaintiff ’s actions must be considered in light of the
totality of circumstances. Clowes simply recognizes that, in
many cases, a reasonable person will not react to minor
                              21


harassment or workplace disturbances by heading straight
for the exit and that, in others, the harassment or
discrimination may be so severe that any reasonable person
would feel compelled to walk out immediately.
   Based on our existing jurisprudence, then, we reiterate
that a plaintiff-employee alleging a constructive discharge
in violation of Title VII must establish the convergence of
two factors: (1) he or she suffered harassment or
discrimination so intolerable that a reasonable person in
the same position would have felt compelled to resign; in
that regard, although we cannot say as a matter of law that
a single incident of discrimination is insufficient to show a
constructive discharge, the employee has the burden of
establishing that the discrimination surpassed a threshold
level of intolerability; and (2) the employee’s reaction to the
workplace situation—that is, his or her decision to resign—
was reasonable given the totality of circumstances; as to
this factor, although it is relevant whether the employee
explored alternative avenues to resolve the alleged
discrimination before resigning, a failure to do so will not
defeat a claim of constructive discharge where the working
conditions were so intolerable that a reasonable person
would have concluded that there was no other choice but to
resign.
   By its nature, the inquiry is “a heavily fact-driven
determination.” Levendos, 860 F.2d at 1230. When an
employee meets his or her burden under this test, a
constructive discharge operates as the functional equivalent
of an actual termination. See Sheridan v. E.I. DuPont de
Nemours & Co., 100 F.3d 1061, 1075 (3d Cir. 1996), cert.
denied, 521 U.S. 1129 (1997) (“Under the applicable law, a
plaintiff who voluntarily resigned may maintain a case of
constructive discharge when the employer’s allegedly
discriminatory conduct creates an atmosphere that is the
constructive equivalent of a discharge.”) (emphasis added)
(citations omitted); see also Lopez v. S.B. Thomas, Inc., 831
F.2d 1184, 1188 (2d Cir. 1987) (“When a constructive
discharge is found, an employee’s resignation is treated—
for the purpose of establishing a prima facie case of
employment discrimination—as if the employer had actually
discharged the employee.”).
                             22


   Applying the law to the present case, it is clear that
Suders has raised genuine issues of material fact relating to
her claim of constructive discharge. As we noted with
respect to her claim of a sexually hostile work environment,
the harassment that she claimed to have endured was
persistent, ongoing, and severe. Prendergast made it clear,
through repeated acts of intimidation and his direct
statements, that Suders was not wanted at the station. To
be subjected to Baker’s wrestling routine on a nightly basis,
along with his and Easton’s conversations of bestiality, oral
sex, and genital piercing, would have been intolerable to
any reasonable person. The conduct of the PA State Police
officers at the McConnellsburg barracks drove Suders to
draft a resignation letter.
   If the harassment was limited to the type of conduct
described above, we find that disputed issues of fact would
have     precluded    summary    judgment    on    Suders’s
constructive discharge claim, notwithstanding the PA State
Police’s argument that she failed to avail herself of an
effective complaint procedure. Arguably, Suders made only
one serious attempt on August 18, 1998, to resolve her
problems within the remedial program established by the
PA State Police. Furthermore, the two days that she waited
before resigning did not give her employer a chance to
remedy the problems at the McConnellsburg barracks.
Nevertheless, whether Suders’s work environment was
objectively intolerable and whether a reasonable person in
her position would have felt compelled to resign would
remain open issues.
   Any shred of doubt, however, is removed when
considering the events of Suders’s final day on the job.
Drawing all reasonable inferences in her favor, Suders
presented evidence sufficient to enable a reasonable finder
of fact to conclude that the officers attempted to set her up
on a false charge of theft. The concealment of her test
results in a set of drawers in the women’s locker room, the
use of theft detection powder to catch one of their own
inside the station, and the excessive and humiliating
treatment that Suders suffered when she was handcuffed
and photographed all point to a pattern of conduct
designed to find some way to terminate Suders. In that
                             23


respect, the facts of this case bear a resemblance to
Levendos, where we reversed the district court’s grant of
summary judgment on a claim of constructive discharge, in
part, because plaintiff, a maitre d’ and pastry chef,
presented evidence that her employer had placed wine
bottles in her locker to make it appear as if she was
stealing. 860 F.2d at 1228, 1231. We also believe that this
type of conduct—false charges of theft or other
manufactured ploys designed to incriminate an employee—
is sufficiently similar to the first and second situations
identified in Clowes, 991 F.2d at 1161. In other words,
false charges of misconduct are tantamount to threats or
suggestions of discharge. Attacking someone with a false
charge of theft seems a most effective way of suggesting
that an employee will be fired or should leave voluntarily.
  Of course, it is unclear at this stage of the litigation
whether a finder of fact would ultimately conclude that
Suders had no other reasonable alternative but to resign.
That is not, however, our concern in reviewing a motion for
summary judgment. Based on the evidence presented, it is
equally plausible that a jury would conclude that Suders
suffered intolerable sexual harassment and that the officers
set her up on a false theft charge. For these reasons, the
District Court erred in failing to address Suders’s claim of
constructive discharge. We hold that Suders has raised
genuine issues of material fact relating to her claim of
constructive discharge that preclude the grant of summary
judgment.
C.   Is a Constructive Discharge a Tangible Employment
     Action?
   Having found that a grant of summary judgment on
Suders’s claim of constructive discharge would have been
improper, the issue remains whether the presence of the
constructive discharge claim alters the balance of the
District Court’s judgment as to the liability of the PA State
Police. Without analysis, the District Court permitted the
PA State Police to assert the affirmative defense to vicarious
liability and, as a result, to prevail on summary judgment.
As we briefly noted at the outset of our opinion, Ellerth and
Faragher hold that an employer is strictly liable to a
victimized employee for the harassment or discrimination of
                                    24


its supervisors if the harassment or discrimination resulted
in a tangible employment action. In that case, an employer
is precluded from invoking the affirmative defense. If,
however, the harassment or discrimination did not amount
to a tangible employment action, the employer is entitled to
assert the affirmative defense. It seems the District Court
bypassed the critical issue in this case: whether a
constructive discharge, when proved, constitutes a tangible
employment action. We hold that it does.
  1.   Ellerth and Faragher
   An understanding of the Supreme Court’s decisions in
Ellerth and Faragher is essential to the issues on appeal. In
both cases, plaintiffs alleged that they endured near-
constant sexual harassment at the hands of their
supervisors. Ellerth, 524 U.S. at 747; Faragher, 524 U.S. at
780. The harassment included uninvited and offensive
touching, lewd remarks, and crude propositions. Both
plaintiffs also sought to hold their employers liable
pursuant to Title VII for the harassment of their
supervisors. Although the plaintiff in Ellerth had also
alleged that her supervisor threatened to deny her tangible
job benefits if she did not submit to his thinly-veiled
demands for sexual favors, the alleged threats never
materialized.8 Ellerth, 524 U.S. 747-48. Therefore, despite
this variance in the factual allegations, both plaintiffs stood
in the same position with respect to Title VII, that is, they
had properly stated claims for unlawful discrimination
based on a sexually hostile work environment. Id. at 754
(“Because Ellerth’s claim involves only unfulfilled threats, it
should be categorized as a hostile work environment claim
which requires a showing of severe or pervasive conduct.”)
(citations omitted).
  The issue in both cases, therefore, was “whether an
employer has vicarious liability when a supervisor creates a
hostile work environment . . . .” Id.; see also Faragher, 524
U.S. at 780 (“This case calls for the identification of the

8. Ellerth’s allegation of a quid pro quo scenario was based in part on an
incident in which her supervisor, while making comments about her
breasts, told her to “loosen up,” warning that “I could make your life very
hard or very easy at Burlington.” Id. at 748 (citations omitted).
                                     25


circumstances under which an employer may be held liable
under Title VII . . . for the acts of a supervisory employee
whose sexual harassment of subordinates has created a
hostile work environment amounting to employment
discrimination.”). Before turning to its analysis, the Court
noted that in the aftermath of its decision in Meritor,
“Courts of Appeals have struggled to derive manageable
standards to govern employer liability for hostile
environment harassment perpetrated by supervisory
employees. . . . [And] the Courts of Appeals have adopted
different approaches.” Faragher, 524 U.S. at 785.9
Therefore, in Ellerth and Faragher, both decided on the
same day, the Court sought to delineate “a uniform and
predictable standard [for vicarious liability] . . . as a matter
of federal law.” Ellerth, 524 U.S. at 754.
   In determining the scope of the vicarious liability of an
employer for the sexual harassment of its supervisors, the
Court turned to principles of agency law. Because the Title
VII definition of “employer” includes “any agent,” 42 U.S.C.
§ 2000e(b), the Court noted that “[i]n express terms,
Congress has directed federal courts to interpret Title VII

9. The confusion among the Courts of Appeals was due in part to the
terminology employed in Meritor to describe different types of Title VII
sexual harassment cases. In Meritor, the Court distinguished cases
where an employer demands sexual favors in return for job benefits from
cases where sexually demeaning behavior—not necessarily constituting a
demand for sexual liberties—alters the terms and conditions of
employment. Meritor, 477 U.S. at 65; see also Ellerth, 524 U.S. at 752.
The Court referred to the former as quid pro quo claims and the latter as
hostile environment claims. The purpose of the distinction is simply to
provide a “rough demarcation” between types of sexual harassment.
Ellerth, 524 U.S. at 752.
   The Court held that both were cognizable under Title VII, but that a
plaintiff claiming a hostile work environment was required to show
harassment that was severe or pervasive. Meritor, 477 U.S. at 67.
Although the Court did not suggest that these terms should bear on the
issue of vicarious liability, the categories acquired a significance of their
own. Some Courts of Appeals interpreted Meritor to mean that vicarious
liability is appropriate when a plaintiff establishes a quid pro quo claim.
See Ellerth, 524 U.S. at 753 (citing cases). This development encouraged
plaintiffs to state their claims as quid pro quo claims, when in fact, the
distinction was never meant to inform the vicarious liability analysis.
                                    26


based on agency principles.” Ellerth, 524 U.S. at 754. It
also cautioned, however, that “common-law principles may
not be transferrable in all their particulars to Title VII.” Id.
at 764 (quoting Meritor, 477 U.S. at 72). The appropriate
starting point is the Restatement (Second) of Agency (1957)
(the “Restatement”). Meritor, 477 U.S. at 72; Ellerth, 524
U.S. at 755.
   The Restatement        provision of direct relevance to this
appeal is section          219(2),10 which sets forth several
situations in which       an employer may be vicariously liable
for the torts of its      employees acting solely for their own
purposes:
     (2) A master is not subject to liability for the torts of
     his servants acting outside the scope of their
     employment, unless:

10. Before turning to § 219(2), the Court left open the possibility of a
limited basis for vicarious liability in § 219(1), which states that “[a]
master is subject to liability for the torts of his servants committed while
acting in the scope of their employment.” Restatement § 219(1) (emphasis
added). An action within the “scope of employment,” is defined by other
sections of the Restatement as one “actuated, at least in part, by a
purpose to serve the [employer].” Restatement §§ 228(1)(c); see also
Ellerth, 524 U.S. at 756-57. The Court recognized that when a supervisor
commits sexual harassment, those actions generally are not actuated by
a purpose to serve the employer. In fact, most employers today, it is
hoped, condemn sexual harassment in the workplace, and the typical
harassing supervisor acts on his or her own animus. See id.; see also
Faragher, 524 U.S. at 793-94; Bouton v. BMW of North America, Inc., 29
F.3d 103, 106-07 (3d Cir. 1994). Nevertheless, the Court left open the
possibility that “a supervisor [may] engage[ ] in unlawful discrimination
with the purpose, mistaken or otherwise, to serve the employer,” for
instance, where an employer has a policy of discouraging women from
seeking advancement. Ellerth, 524 U.S. at 757.
  We note that the record presented in Suders’s appeal does not support
the inference that the PA State Police officers were acting in the scope of
their employment. Therefore, § 219(1) is not relevant to this appeal as a
basis for imposing vicarious liability.
  We leave aside other possible bases for liability that are not relevant to
Suders’s appeal: cases in which the position of the harasser makes him
an alter ego of the employer; and cases in which the employee
reasonably, but wrongly, believes that the harasser is a supervisor. See
Durham Life Ins. Co. v. Evans, 166 F.3d 139, 152 n.8 (3d Cir. 1999).
                             27


      (a) the master intended        the   conduct     or   the
      consequences, or
      (b)   the master was negligent or reckless, or
      (c) the conduct violated a non-delegable duty of the
      master, or
      (d) the servant purported to act or to speak on
      behalf of the principal and there was reliance upon
      apparent authority, or he was aided in accomplishing
      the tort by the existence of the agency relation.
Restatement     § 219(2)   (emphasis      added);   see also
Restatement § 219, Comment e. As in Ellerth and Faragher,
Suders does not allege that the PA State Police itself
intended to harass her or that there is a non-delegable duty
at issue. Therefore, subsections (a) and (c) of section 219(2)
are not relevant to this appeal. Section 219(2)(b) might
arguably apply if Suders had alleged that the PA State
Police was negligent in that it “knew or should have known
about” the harassment and failed to stop it. See Ellerth, 524
U.S. at 759. Because she conceded that she resigned only
two days after making her first formal complaint to Smith-
Elliott, Suders implicitly acknowledges that the PA State
Police was not aware of what had transpired at the
McConnellsburg barracks, thus precluding vicarious
liability under subsection (b). Finally, Suders does not
allege that the PA State Police officers purported to exercise
authority that they did not have, and therefore, the
“apparent authority” clause of section 219(2)(d) is also
inapplicable here.
  Thus, as in Ellerth and Faragher, vicarious liability must
be premised on the second clause of section 219(2)(d),
which provides for the vicarious liability of an employer for
the tortious acts of an employee when the latter is “aided in
accomplishing the tort by the existence of the agency
relation.” This has come to be known as the “aided in the
agency relation standard.” Ellerth, 524 U.S. at 759. In the
context of Title VII, the Supreme Court recognized that “it
makes sense to hold an employer vicariously liable for some
tortious conduct of a supervisor made possible by abuse of
his supervisory authority, and that the aided-by-agency-
relation principle embodied in § 219(2)(d) of the
                                   28


Restatement provides an appropriate starting point for
determining liability for the kind of harassment presented
here.” Faragher, 524 U.S. at 802.
   While the Court found an appropriate starting point in
the aided in the agency relation standard, it also recognized
an inherent definitional problem: broadly speaking, most
workplace harassment occurs because men and women are
brought together as co-workers in close quarters. In that
sense, all harassment is aided by the agency relationship
put in place by employers. The Court cautioned that “[w]ere
this to satisfy the aided in the agency relation standard, an
employer would be subject to vicarious liability not only for
all supervisor harassment, but also for all co-worker
harassment, a result enforced by neither the EEOC nor any
court of appeals to have considered the issue.” Ellerth, 524
U.S. at 760 (emphasis added). In that regard, it is
important to note the clear limitations of the aided in the
agency relation standard as a basis for vicarious liability.
Specifically, the Supreme Court recognized, and we
reiterate here, a clear distinction between supervisors and
co-workers. This recognition derives from the simple fact
that, for purposes of liability, only supervisors, because of
the authority vested in them by their employers and
because of the rank they possess over others, may be aided
by the agency relation in the commission of actionable
harassment.11

11. See Faragher, 524 U.S. at 803. The Court noted that “[r]ecognition of
employer liability when discriminatory misuse of supervisory authority
alters the terms and conditions of a victim’s employment is underscored
by the fact that the employer has a greater opportunity to guard against
misconduct by supervisors than by common workers; employers have
greater opportunity and incentive to screen them, train them, and
monitor their performance.” Id.
  In addition to the special relationship between employers and
supervisors, harassment by a supervisor takes on different dimensions
than harassment by a co-worker: “When a fellow employee harasses, the
victim can walk away or tell the offender where to go, but it may be
difficult to offer such responses to a supervisor, whose ‘power to
supervise’—[which may be] to hire and fire, and to set work schedules
and pay rates—does not disappear . . . when he chooses to harass
through insults and offensive gestures rather than directly with threats
                                    29


   The distinction between supervisors and co-workers is a
crucial limitation worth reiterating, but by design, it simply
precludes vicarious liability under the aided in the agency
relation standard for a category of would-be harassers, co-
workers. The distinction does not fundamentally alter the
breadth of § 219(2)(d) as written. Without further
qualification, the aided in the agency relation standard
risks holding the employer “automatically” liable for a
supervisor’s harassment without regard to the nature of the
supervisor’s conduct, a result that the Court forbade in
Meritor, 477 U.S. at 72. See also Faragher, 524 U.S. at 804.
Therefore, the Court found that in order to impose vicarious
liability on an employer under the aided in the agency
relation standard, “something more” would be required.
Ellerth, 524 U.S. at 760.12 The Court’s resolution of this
question reflects an intricate balance incorporated into a
complex rule of law with multiple components.

of firing or promises of promotion.” Id. (citing Estrich, Sex at Work, 43
STAN. L. REV. 813, 854 (1991)).
  At oral argument, the PA State Police contended that none of the
individual officers had the requisite authority to commit a tangible
employment action because they could not discharge or demote Suders.
We reject this attempt to rein in the scope of a supervisor within the
meaning of Ellerth and Faragher. The record in this case clearly reflected
that (1) Easton was responsible for the day-to-day supervision of the
McConnellsburg barracks; and (2) both Baker and Prendergast had
supervisory duties with respect to “running [their] shift[s].” App. at 215.
No more is required to raise a genuine issue of material fact as to their
supervisory authority.
  We are not persuaded, however, that the actions of Smith-Elliot
amounted to actionable harassment. Her supervisory authority over
Suders was not clearly established in the record below. Although her
conduct is relevant, especially to the affirmative defense, we strain to see
how it alone substantiates a claim under Title VII. Nevertheless, in light
of our remand, these issues may be addressed on the merits.
12. See also Faragher, 524 U.S. at 797 (“The proper analysis here, then,
calls not for a mechanical application of indefinite and malleable factors
set forth in the Restatement . . . , but rather an inquiry into the reasons
that would support a conclusion that harassing behavior ought to be
held within the scope of a supervisor’s employment, and the reasons for
the opposite view.”).
                              30


  First, the Court identified a class of supervisory actions
for which more than the mere existence of the agency
relation is unquestionably required for the commission of
the alleged harassment: “when a supervisor takes a
tangible employment action against the subordinate.” Id.
When a supervisor’s actions result in a tangible
employment action, the employer shall be strictly liable for
the actionable harassment of its supervisors, without
regard to an affirmative defense. Id. at 765; Faragher, 524
U.S. at 808.
   The Court’s discussion of the attributes of a tangible
employment action is critical to the present appeal. In
broad strokes, a tangible employment action “constitutes a
significant change in employment status.” Ellerth, 524 U.S.
at 761. A tangible employment action is also defined by
reference to a non-exclusive list of representative workplace
actions, “such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or
a decision causing a significant change in benefits.” Id. at
761 (emphasis added); see also Faragher, 524 U.S. at 790.
In most cases, but not always, “a tangible employment
action . . . inflicts direct economic harm.” Finally, a tangible
employment action implicates, in some meaningful way, the
authority of the employer itself: “A tangible employment
decision requires an official act of the enterprise, a
company act. The decision in most cases is documented in
official company records, and may be subject to review by
higher level supervisors. . . . The supervisor often must
obtain the imprimatur of the enterprise and use its internal
processes.” Ellerth, 524 U.S. at 762 (emphases added).
   Second, when a supervisor’s harassment does not
amount to a tangible employment action, the Court found
it unclear whether the aided in the agency relation
standard should support vicarious liability. In that regard,
we noted above that the risk of holding the employer
“automatically” liable for the acts of its supervisors was too
great. Id. at 763 (“[W]e are bound by our holding in Meritor
that agency principles constrain the imposition of vicarious
liability in cases of supervisory harassment.”) (citations
omitted). Nevertheless, for actions that fall short of a
tangible employment action, but would otherwise be
                                31


actionable under Title VII, the Court did not give employers
a free pass from liability. In cases where a supervisor’s
harassment does not result in a tangible employment
action, the Court made available to employers an
affirmative defense, an approach designed to further the
well-recognized Title VII goals of encouraging anti-
harassment policies and effective mechanisms for
addressing employee complaints. See id. at 764; Faragher,
524 U.S. at 806.
  Therefore, in both Ellerth and Faragher, the Court
adopted the following holding:
       An employer is subject to vicarious liability to a
       victimized employee for an actionable hostile
       environment created by a supervisor with immediate
       (or successively higher) authority over the employee.
       When no tangible employment action is taken, a
       defending employer may raise an affirmative defense to
       liability or damages, subject to proof by a
       preponderance of the evidence, see Fed. Rule Civ. Proc.
       8(c). The defense comprises two necessary elements: (a)
       that the employer exercised reasonable care to prevent
       and correct promptly any sexually harassing behavior,
       and (b) that the plaintiff employee unreasonably failed
       to take advantage of any preventive or corrective
       opportunities provided by the employer or to avoid
       harm otherwise. . . . No affirmative defense is available,
       however, when the supervisor’s harassment culminates
       in a tangible employment action, such as discharge,
       demotion, or undesirable reassignment.
Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807-08.
  2.    The Aftermath of Ellerth and Faragher and the
        Issue of Constructive Discharge in the Courts of
        Appeals
  In light of the Supreme Court’s guidance in Ellerth and
Faragher, we reach the critical issue in this case: when a
supervisor’s harassment culminates in a constructive
discharge, as Suders persuasively supported in her
opposition to the motion for summary judgment, may her
employer assert the affirmative defense to liability? As our
analysis above demonstrates, the issue may be reduced
                             32


more simply to whether a constructive discharge
constitutes a tangible employment action. We recognize
that constructive discharge did not appear in either the
Supreme Court’s discussion pertaining to what constitutes
a tangible employment action or the list of representative
employment actions. This absence is not dispositive,
however, as a claim of constructive discharge was not
before the Court in either of the two cases. Therefore, the
principles underlying a tangible employment action,
together with the relevant agency and Title VII concerns,
should guide our inquiry.
  The PA State Police argues on appeal that a constructive
discharge does not constitute a tangible employment action
and that its position is supported by case law from other
jurisdictions. We recognize a division among the Courts of
Appeals as to this issue. A survey of the courts that have
addressed the issue reveals a number of different
approaches.
  The PA State Police correctly notes that the Court of
Appeals for the Second Circuit has held that a “constructive
discharge does not constitute a ‘tangible employment
action,’ as that term is used in Ellerth and Faragher.”
Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 294
(2d Cir. 1999), cert. denied, 529 U.S. 1107 (2000). In
Caridad, the court based its decision on three grounds.
First, the court noted that “[c]o-workers, as well as
supervisors can cause the constructive discharge of an
employee.” Id. Second, “unlike demotion, discharge, or
similar economic sanctions, an employee’s constructive
discharge is not ratified or approved by the employer,” id.,
which would seem to contravene the Supreme Court’s
observation in Ellerth, that a tangible employment generally
requires a “a company act.” 524 U.S. at 762. Third, the
Second Circuit suggested that in Ellerth, the Supreme
Court implicitly addressed the issue of constructive
discharge and that its holding does not permit the
conclusion that such action constitutes a tangible
employment action:
    Moreover, the facts of Ellerth, where the plaintiff, like
    Caridad, did not complain of the harassment prior to
    quitting her job, indicate that constructive discharge is
                                     33


     not a tangible employment action depriving the
     employer of the availability of the affirmative defense to
     Title VII liability. Ellerth alleged that she had been
     constructively discharged as a result of sexual
     harassment by her supervisor . . . ; in remanding the
     case for a determination of whether the employer could
     make out an affirmative defense, the Supreme Court
     noted that ‘Ellerth has not alleged she suffered a
     tangible employment action at the hands of [her
     supervisor].’13 Caridad, 191 F.3d at 294-95 (citations
     omitted).
   Recently, the Court of Appeals for the Sixth Circuit, in an
unpublished opinion, has adopted the holding in Caridad
that a “claim of constructive discharge is not a tangible
employment action for purposes of Faragher and
Burlington.” Turner v. Dowbrands, Inc., No. 99-3984, 2000
WL 924599, at *1 (6th Cir. June 26, 2000); see also Keaton
v. State of Ohio, No. C2-00-1248, 2002 WL 1580567, at *9
(S.D. Ohio June 3, 2002).14 In addition, other district courts

13. We believe that the particular factual circumstances in Caridad shed
some light on the court’s decision there and distinguish that case from
the present. Plaintiff in that case had consulted defendant’s Director of
Affirmative Action. She told the Director that she was being sexually
harassed, without telling him the details of any incidents. The Director
responded that it would be impossible to take further action without the
details of the sexual harassment to which she alluded. Even still, the
Director offered to transfer plaintiff to another shift, but she declined
this and the offer to investigate further.
  The court underscored plaintiff ’s reluctance to take advantage of the
remedial measures in place, noting that plaintiff “did not complain of the
harassment prior to quitting her job,” thus indicating that “a
constructive discharge is not a tangible employment action.” Caridad,
191 F.3d at 294. We believe that all of these probative facts as to
plaintiff ’s failure to provide details and to cooperate with the Director are
clearly relevant, but more to the issue of whether there was a
constructive discharge in the first place. We do not believe that these
facts should bear upon the question of whether a constructive discharge
would constitute a tangible employment action.
14. Several district courts have also adopted the holding in Caridad for
substantially the same reasons advanced by the Second Circuit. See
Scott v. Ameritex Yarn, 72 F. Supp. 2d 587, 594 (D.S.C. 1999);
Desmarteau v. City of Wichita, Kansas, 64 F. Supp. 2d 1067, 1079 (D.
Kan. 1999); Alberter v. McDonald’s Corp., 70 F. Supp. 2d 1138, 1147 (D.
Nev. 1999).
                              34


aligning themselves with the Second Circuit have rejected
the notion that a constructive discharge constitutes a
tangible employment action on other grounds. For instance,
in Powell v. Morris, the court held that a constructive
discharge is not a tangible employment action because if
the Supreme Court had intended to include constructive
discharge, it “could have easily listed ‘constructive
discharge’ along with the other incidents as constituting a
tangible employment action.” 37 F. Supp. 2d 1011, 1019
(S.D. Ohio 1999).
   In contrast to the Second and Sixth Circuits, the Court of
Appeals for the Eighth Circuit held that a constructive
discharge, when proved, would constitute a tangible
employment action. See Jaros v. LodgeNet Entertainment
Corp., 294 F.3d 960, 966 (8th Cir. 2002) (“The district court
did not err in its instruction, since a constructive discharge
constitutes a tangible employment action which prevents
an employer from utilizing the affirmative defense.”)
(citations omitted); Jackson v. Arkansas Dep’t of Ed., 272
F.3d 1020, 1026 (8th Cir. 2001) (“If [plaintiff] was in fact
constructively discharged, then the constructive discharge
would constitute a tangible employment action and prevent
the [defendant] from utilizing the affirmative defense.”), cert.
denied, 122 S. Ct. 2366 (2002). The Eighth Circuit,
however, did not address the rationales advanced by the
Second Circuit in Caridad.
  Among the district courts, the leading case for the
position contrary to Caridad is Cherry v. Menard, Inc., 101
F. Supp. 2d 1160 (N.D. Iowa 2000). In a well-reasoned
decision, the United States District Court for the Northern
District of Iowa, presented a compelling counterpoint to the
Second Circuit’s decision in Caridad. In Cherry, the court
found that “none of [the] reasons [advanced in Caridad]
stands up to a probing scrutiny,” and that “the court is not
persuaded by [defendant’s] argument, that a constructive
discharge does not constitute a ‘tangible employment
action’ as defined in Ellerth/Faragher.” Id. at 1171, 1176.
  Other district courts have followed Jaros and Cherry. See
Vasquez v. Atrium Door & Window Co. of Arizona, Inc., 218
F. Supp. 2d 1139, 1142 (D. Ariz. 2002) (“After careful
consideration of the issue, the Court finds that a
                              35


constructive discharge constitutes a tangible employment
action.”); Haworth v. Romania Imported Motors, Inc., No. CV
00-1721, 2001 WL 34041893, at *8 (D. Or. Dec. 27, 2001)
(“Under the reasoning provided by the Supreme Court in
Ellerth/Faragher, constructive discharge constitutes a
tangible employment action as the Court contemplated the
term.”); Taylor v. United Regional Health Care System, Inc.,
No. CIV. A. 700CV145-R, 2001 WL 1012803, at *6 (N.D.
Tex. Aug. 14, 2001) (“[C]onstructive discharge and a failure
to promote are ‘tangible employment actions’ for the
purposes of Title VII.”).
   Other Courts of Appeals have noted the issue, but
expressly declined to rule on it. See Kohler v. Inter-Tel
Technologies, 244 F.3d 1167, 1179 n.8 (9th Cir. 2001) (“We
have not yet determined whether a constructive discharge
is a tangible employment action. . . . We do not reach this
issue in this case because Kohler has waived her
constructive discharge claim.”); Mosher v. Dollar Tree
Stores, Inc., 240 F.3d 662, 666-667 (7th Cir.) (“First, it
should be noted that we have yet to determine whether a
constructive discharge is a tangible employment action
within the meaning of Ellerth and Faragher. . . . However,
we need not settle that issue today, for we find that
[plaintiff] did not raise a genuine issue of material fact that
she was constructively discharged.”) (citations omitted),
cert. denied, 534 U.S. 1041 (2001).
  3.   A   Constructive    Discharge,  When    Proved,
       Constitutes a Tangible Employment Action within
       the Meaning of Ellerth and Faragher
   Although we are cognizant of this wide divergence of
views among the Courts of Appeals, we disagree with the PA
State Police’s argument that a constructive discharge is not
a tangible employment action. Our decision is based on the
following observations: (1) although we have not definitively
ruled on the issue, our recent decisions have suggested
that a constructive discharge constitutes a tangible
employment action; (2) none of the grounds advanced by
the Caridad line of cases persuades us that a constructive
discharge should not be held to constitute a tangible
employment action; and (3) holding an employer strictly
liable for a constructive discharge resulting from the
                              36


actionable harassment of its supervisors more faithfully
adheres to the policy objectives set forth in Ellerth and
Faragher and to our own Title VII jurisprudence.
   At the outset, we note that although the present appeal
marks the first time that we definitively address the issue
of constructive discharge within the framework of Ellerth
and Faragher, we are not writing on a blank slate. In
Cardenas v. Massey, 269 F.3d 251, 266-67 (3d Cir. 2001),
plaintiff alleged that he was subjected to a racially hostile
work environment, resulting in his constructive discharge.
In reversing the grant of summary judgment on plaintiff ’s
hostile work environment claim, we noted that “[i]f
Cardenas convinces a jury that he was victimized by a
hostile work environment created by [defendants], it is
certainly possible that the same jury would find that the
hostile environment was severe enough to have precipitated
Cardenas’ resignation, i.e., a constructive discharge.” Id. We
also recognized that “[t]here appears to be some
disagreement on whether constructive discharge constitutes
a tangible employment action.” Id. at 267 n.10.
Nevertheless, we felt that in light of the particular facts and
circumstances in Cardenas, the better result was to “leave
this issue to the District Court in the first instance. For
purposes of this discussion, we assume a constructive
discharge is a tangible employment action.” Id.
   In addition, in Durham Life, 166 F.3d at 149 n.5, plaintiff
also alleged sexual harassment and a constructive
discharge. In that case, a majority of the panel was
achieved by the concurrence of two of our colleagues. In
discussing the reasons for the different perspectives of the
panel members, the Court noted that “[Plaintiff] was the
subject of a tangible adverse employment action, the
District Court found that her supervisors were responsible
for her constructive discharge and the District Court
returned a verdict compensating her for the damages she
suffered.” Id. Furthermore, we suggested in clear terms that
a constructive discharge would constitute a tangible
employment action: “In a case such as this one, where
[plaintiff] was constructively discharged by her supervisors’
action after their own actionable behavior, the holdings and
instruction of Ellerth and Faragher are clear: the employer,
                                     37


Durham Life Insurance Company, is automatically liable
and no affirmative defense is available.”15 Id. Despite this
clear suggestion, our holding in Durham Life was ultimately
based on employment actions unrelated to the constructive
discharge—that is, we found that plaintiff had met her
burden at trial of demonstrating a tangible employment
action based on, inter alia, evidence that her supervisor had
(1) dismissed her secretary; (2) removed files from her office
which were vital to her work; and (3) allocated a
disproportionate share of less lucrative assignments to her.
Id. at 153-54. Therefore, notwithstanding the suggestions
in Cardenas and Durham Life, one court noted in April
2002, that as to the issue of whether a constructive
discharge constitutes a tangible employment action, “the
Third Circuit explicitly has declined to resolve this issue.”
Evans v. Nine West Group, Inc., No. CIV. A. 00-4850, 2002
WL 550477, at *9 (E.D. Pa. Apr. 15, 2002). We seek to
resolve this issue today and to elaborate on the statements
that we have already made as to the significance of a
constructive discharge in the Ellerth and Faragher analysis.
   In addition to our earlier suggestions in Cardenas and
Durham Life, we are not persuaded that the grounds
advanced in the Caridad line of cases compel the holding
that a constructive discharge does not constitute a tangible
employment action. We address first the argument in
Powell, 37 F. Supp. 2d at 1019, that there is some meaning
in the Supreme Court’s exclusion of constructive discharge
from the list of representative tangible employment actions.
We disagree.
   The Supreme Court made it clear that it intended to
provide a non-exclusive list of clear cases of tangible
employment actions, on the one hand, and broader
categories, on the other. The Supreme Court stated that a
“tangible employment action constitutes a significant

15. We also stated that “[u]nder Durham’s theory, any substantial
adverse action, such as a demotion in authority and pay, would not be
a tangible adverse employment action if it led the affected employee to
quit before the demotion took effect. This is contrary to Title VII doctrine,
which recognizes a constructive discharge under such circumstances.”
Durham Life, 166 F.3d at 153.
                               38


change in employment status, such as hiring, firing, failing
to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change
in benefits.” Ellerth 524 U.S. at 761 (emphasis added).
Several aspects of this definition support our conclusion
that it was intended to be non-exhaustive. As other courts
have noted, the use of the qualifier “such as” indicates that
tangible employment actions are not limited to those that
follow the qualifier. See Jin v. Metropolitan Life Ins. Co., 310
F.3d 84, 93 (2d Cir. 2002); Cherry, 101 F. Supp. 2d at
1175; Vasquez, 218 F. Supp. 2d at 1142-43. In addition,
we observe that the list begins with specific actions that
could constitute a tangible employment action—hiring,
firing, and failing to promote—and ends with broader
categories that could describe many different workplace
actions—reassignment         with     significantly     different
responsibilities, or a decision causing a significant change
in benefits. By employing this structural technique, the
Supreme Court recognized a simple reality of harassment in
the modern workplace: tangible employment actions often
take the form of subtle discrimination not easily categorized
as a formal discharge or demotion.
   Also, for the proposition that a tangible employment
action is a flexible concept, not limited to the actions
mentioned in Ellerth, we need look no further than our
recent decision in Durham Life. There, as described above,
we determined that a tangible employment action resulted
where a supervisor (1) dismissed an employee’s secretary,
(2) removed her essential work files, and (3) allocated to her
a disproportionate share of less lucrative assignments. See
Durham Life, 166 F.3d at 153-54. Of course, none of these
actions appear in the list set forth in Ellerth, which is
entirely consistent with our finding that the Supreme Court
intended to set forth a non-exclusive list of representative
actions. See id. at 144 (“The concept of a tangible adverse
employment action is not limited to changes in
compensation, although Evans’s pay was certainly affected
by the actions taken against her. ‘Tangible adverse
employment action’ includes the loss of significant job
benefits or characteristics, such as the resources necessary
for an employee to do his or her job . . . .”).
                              39


   Next, we address the court’s reasoning in Caridad that
the Supreme Court implicitly addressed and rejected
constructive discharge as falling within the ambit of a
tangible employment action. The court’s reasoning was
based on the fact that although plaintiff in Ellerth had
initially alleged a claim of constructive discharge, the
Supreme Court concluded that “[plaintiff] has not alleged
she suffered a tangible employment action at the hands of
[her supervisor].” Ellerth, 524 U.S. at 766. Based on our
review of the procedural history of the case, however, we
find that the claim of constructive discharge was never
before the Court when it ruled. While it is true that plaintiff
initially pleaded a claim of constructive discharge, the trial
judge granted summary judgment as to that claim, noting
that “it can not be said that [defendant] made [plaintiff ’s]
working conditions intolerable forcing her into an
involuntary resignation.” Ellerth v. Burlington Industries,
Inc., 912 F. Supp. 1101, 1124 (N.D. Ill. 1996). When the
matter reached the Seventh Circuit, the focus of the appeal
was limited to plaintiff ’s claims of quid pro quo harassment
and hostile environment harassment. See Jansen v.
Packaging Corp. of America, 123 F.3d 490, 494 (7th Cir.
1997) (en banc) (consolidated with Ellerth).
   By the time the matter reached the Supreme Court, the
issues had narrowed even further: “The question presented
on certiorari is whether [plaintiff] can state a claim of quid
pro quo harassment, but the issue of real concern to the
parties is whether Burlington has vicarious liability for
[defendant’s] alleged misconduct, rather than liability
limited to its own negligence.” Ellerth, 524 U.S. at 753.
Simply put, plaintiff ’s claim of constructive discharge was
never before the Supreme Court and, in fact, the Seventh
Circuit barely addressed it. See Cherry, 101 F. Supp. 2d at
1174. Our conclusion is supported by the fact that
constructive discharge does not appear anywhere in the
Supreme Court’s analysis. Therefore, we agree with the
court in Cherry, that “the Ellerth decision left entirely open
the question of whether a constructive discharge resulting
from conduct of a supervisor can constitute the sort of
‘tangible employment action’ that deprives an employer of
the Ellerth/Faragher defense.” Id. at 1175.
                                    40


  In addition, the court in Caridad held that because “[c]o-
workers, as well as supervisors, can cause the constructive
discharge of an employee,” it should not be construed as a
tangible employment action. 191 F.3d at 294. This
observation is beside the point. The Supreme Court
recognized that many tangible employment actions may be
perpetrated by either supervisors or co-workers. After all,
supervisors and co-workers alike can make obscene
gestures, lewd comments, sexual propositions, or steal
another employee’s clients. For the sake of recognizing
reasonable limits to the aided in the agency relation
standard, however, the Supreme Court made the
categorical distinction between co-workers and supervisors
and imposed vicarious liability only with respect to the
actions of the latter. Furthermore, the Court noted that
most, but not all, tangible employment actions are usually
committed by supervisors. Ellerth, 524 U.S. at 762 (“As a
general proposition, only a supervisor, or other person
acting with the authority of the company, can cause this
sort of injury.”) (emphasis added). It is of no consequence
that constructive discharge may be caused by a co-worker
because we are only concerned here with that which is
caused by a supervisor. And in that regard, our inquiry is
not whether an action may be caused by a co-worker or
supervisor, it is whether the supervisor’s action constitutes
a “significant change in employment status.” Id. at 761.16
  We turn to the final rationale advanced by the court in
Caridad, the notion that, unlike termination or demotion,

16. As the court observed in Cherry, this argument “appears to be
backwards: The panel in Caridad reasoned that a ‘tangible employment
action’ must be a harm that only a supervisor can inflict, when the
Supreme Court defined a ‘tangible employment action’ in terms of the
harm it can inflict, observed that ordinarily, but not exclusively, only a
supervisor can inflict such harm . . . , and then concluded that the
‘aided in the agency relation’ standard ‘will always be met when a
supervisor takes a tangible employment action against a subordinate.’
Consequently, this court concludes that, under the Supreme Court’s
definition, it is the nature of the harm inflicted by a supervisor—that is,
‘a significant change in employment status’ or ‘inflict[ion] of a direct
economic harm’—that determines whether the supervisor’s action is a
‘tangible employment action,’ not whether a co-worker could also inflict
such harm.” 101 F. Supp. 2d at 1172-73 (citations omitted).
                             41


constructive discharge is not ratified by the employer. It is
true that in a constructive discharge situation, it is the
employee who ultimately decides that he or she has no
alternative but to resign. In that sense, as regards the
specific event which terminates the employer-employee
relationship, a constructive discharge may not bear the
“imprimatur of the enterprise,” Ellerth, 524 U.S. at 762, in
the same way as a formal termination. We are not
persuaded, however, that this distinction compels the
conclusion that a constructive discharge is not a tangible
employment action.
   First, this view contravenes the fundamental principle of
our jurisprudence that a constructive discharge, when
proved, operates as the functional equivalent of an actual
termination. Sheridan, 100 F.3d at 1075 (finding that a
constructive discharge is the “constructive equivalent of a
[formal] discharge”). This principle recognizes that when a
plaintiff-employee successfully demonstrates that the work
environment created by an employer was so intolerable that
he or she had no choice but to resign, the constructive
discharge becomes, for all intents and purposes, the act of
the employer. There are sound reasons for adopting this
legal construct. For instance, when a plaintiff-employee
meets the stringent test of showing a constructive
discharge, the direct economic harm suffered is identical to
that of a formally discharged employee. Cherry, 101 F.
Supp. 2d at 1173 (“constructive discharge constitutes
precisely the same sort of ‘significant change in
employment status’ and inflicts precisely the same sort of
‘economic harm’ as any other ‘firing.’ ”); see also Vasquez,
218 F. Supp. 2d at 1142-43.
   In addition, to the extent that Caridad suggested that
only an action ratified by the employer and documented in
official records qualifies as a tangible employment action,
we disagree. As another panel of the Second Circuit noted:
“though a tangible employment action ‘in most cases is
documented in official company records, and may be
subject to review by higher level supervisors,’ the Supreme
Court did not require such conditions in all cases.” Jin, 310
F.3d at 98 (emphases in original) (quoting Ellerth, 524 U.S.
at 762). As we noted above, tangible employment actions
                             42


defy neat categories and an attempt to list them all would
be futile. They occur within the context of each unique
factual situation. Therefore, we agree that tangible
employment actions are often ratified by an employer, and
we should look first to official company records for relevant
evidence. But by no means is a tangible employment action
precluded solely because no documentation of a company
act exists. Ellerth, 524 U.S. at 762.
  In fact, in other Title VII contexts, courts have explicitly
recognized that some of the most pernicious forms of
workplace harassment, clearly amounting to tangible
employment actions, are often not accompanied by official
company acts. This is especially true in quid pro quo cases
where a victimized employee submits to a supervisor’s
demands for sexual favors in return for job benefits, such
as continued employment. In these cases, it is rare that a
supervisor’s demands for sexual liberties, and the
corresponding threat of adverse consequences for failure to
submit, will be documented anywhere in company records.
Therefore, a rule requiring a victimized employee who
submits to a supervisor’s indecent demand for sexual
favors to prove an official company act in order to establish
a tangible employment action strains common sense. As
the Second Circuit has held, the more sensible approach in
the quid pro quo context is to recognize that, by his or her
actions, a supervisor invokes the official authority of the
enterprise:
    Finally, MetLife relies on a statement in Ellerth that “a
    tangible employment decision requires an official act of
    the enterprise, a company act.” But, assuming Jin’s
    allegations to be true, Morabito’s use of his supervisory
    authority to require Jin’s submission was, for Title VII
    purposes, the act of the employer. This is because
    Morabito brought “the official power of the enterprise to
    bear” on Jin by explicitly threatening to fire her if she
    did not submit and then allowing her to retain her job
    based on her submission.
Jin, 310 F.3d at 98 (citations omitted).
  This rationale is equally applicable in the context of
constructive discharge. By focusing on the actions of a
                                 43


supervisor and on the type of injury to a plaintiff, it
becomes clear that when a supervisor creates a hostile
work environment so severe that an employee has no
alternative but to resign, the official power of the enterprise
is brought to bear on the constructive discharge.17 In that
regard, we find no sound justification for requiring more in
constructive discharge cases than in quid pro quo cases in
order to find a tangible employment action: an employee’s
constructive discharge is no more unilateral an act of the
victimized employee and no less coerced by the employer
than submission to sexual advances in a quid pro quo
situation. Therefore, we reject any rule requiring a plaintiff-
employee alleging a constructive discharge to show an
official company act in order to prove a tangible
employment action.
   In any event, we note that, as a practical matter, a
constructive discharge is often ratified by the employer. In
the appeal of Ellerth to the Seventh Circuit, Chief Judge
Posner remarked in his concurring opinion that “[t]he
difficult borderline case is that of constructive termination
precipitated by a threat. The termination will look to the
supervisor’s superiors like a voluntary quit. But since there
is always some paperwork involved in an employee’s
quitting, the higher-ups in the company will have some
ability to monitor constructive discharges, and I would
therefore impose strict liability in such cases.” Jansen, 123
F.3d at 515 (emphases added). The present case is a perfect
illustration of this proposition. While it is true that Baker’s
repetition of the wrestling move five to ten times per
evening might not be reflected in official PA State Police
records, the circumstances of the allegedly false charge of
theft are quite likely to be detailed in documents. Suders
was handcuffed, photographed, and detained as a suspect,
events that surely leave a paper trail. At a trial on the
merits, the significance of these documented events may be

17. See generally Kerri L. Bauchner, From Pig in a Parlor to Boar in a
Boardroom: Why Ellerth Isn’t Working and How Other Ideological Models
Can Help Reconceptualize the Law of Sexual Harassment, 8 COLUM. J.
GENDER & L. 303, 331-32 (1999) (advocating a competing interests
approach to sexual harassment cases which would give due regard to
the injury suffered by a plaintiff).
                              44


judged by weighing Suders’s testimony against that of the
PA State Police officers. Thus, the documents surrounding
Suders’s departure may indeed reflect the imprimatur of
the PA State Police to the extent that its supervising officers
were trying to force Suders to quit, and we believe that she
should have the opportunity to prove that. Moreover,
because a constructive discharge will necessarily involve
the termination of an employment relationship, the
employer will be on notice and have the opportunity to
determine the cause of the separation from employment.
This too may be an appropriate line of inquiry for trial.
  For these reasons, we are not persuaded by any of the
grounds advanced by the Caridad line of cases for the
proposition that a constructive discharge does not
constitute a tangible employment action.
   Lastly, we find that placing a constructive discharge
within the rubric of tangible employment actions more
faithfully adheres to the Supreme Court’s guidance in
Ellerth and Faragher and to our Title VII jurisprudence. At
the outset, we reiterate that when a plaintiff-employee
satisfies his or her burden of proving a constructive
discharge, we view the resignation as the functional
equivalent of an actual termination. See Sheridan, 100 F.3d
at 1075. As noted above, we have not found any sound
justifications for treating a constructive discharge
differently from an actual termination in the tangible
employment action analysis.
  As we also noted above, a constructive discharge has, in
most critical respects, the primary attributes of a tangible
employment action, as defined in Ellerth and Faragher. In
the same way as a formal discharge, a constructive
discharge “constitutes a significant change in employment
status,” by ending the employer-employee relationship.
Ellerth, 524 U.S. at 761. A constructive discharge also
inflicts the same type of “direct economic harm.” Id. at 762;
see also Cherry, 101 F. Supp. 2d at 1173; Vasquez, 218 F.
Supp. 2d at 1143.
  Turning to our Title VII jurisprudence, we noted in
Andrews that “Congress designed Title VII to prevent the
perpetuation of stereotypes and a sense of degradation
                                  45


which serve to close or discourage employment
opportunities for women. . . . Such an objective can only be
achieved if women are allowed to work without being
harassed. Women who know that they will be subject to
harassment will be deterred from joining the work force or
accepting certain jobs.”18 895 F.2d at 1483. We also
recognized that, “[r]egrettably, however, this in no way
suggests that discrimination based upon an individual’s
race, gender, or age is near an end. Discrimination
continues to pollute the social and economic mainstream of
American life, and is often simply masked in more subtle
forms.” Aman, 85 F.3d at 1081-82. In light of both the
policies and the realities of workplace discrimination, we
have always been mindful of the consequences and the
intricate balance of incentives when adopting rules in the
context of Title VII. See Durham Life, 166 F.3d at 154
(holding that requiring plaintiffs to report the first instance
of discriminatory conduct “would have the perverse effect of
putting a greater burden on plaintiffs who had extensive
evidence of discrimination.”); see also Kolstad v. American
Dental Ass’n, 527 U.S. 526, 544 (1999) (“Applying the
Restatement of Agency’s ‘scope of employment’ rule in the
Title VII punitive damages context, moreover, would reduce
the incentive for employers to implement antidiscrimination
programs.”); Robinson v. Shell Oil Co., 519 U.S. 337, 346
(1997) (noting that the “exclusion of former employees from
the protection of § 704(a) would undermine the effectiveness
of Title VII by allowing the threat of postemployment
retaliation to deter victims of discrimination from
complaining to the EEOC.”).
   In that regard, we emphasize that removing constructive
discharge from the category of tangible employment actions
could have the perverse effect of discouraging an employer
from actively pursuing remedial measures and of possibly
encouraging intensified harassment. When confronted with
allegations of sexual harassment, employers have a wide
range of options, including terminating the offending

18. See also Faragher, 524 U.S. at 805-06 (noting that primary purpose
of Title VII is not to provide redress, but rather to avoid harm). This
purpose served as the basis for making an affirmative defense available
to an employer in the absence of a tangible employment action.
                              46


supervisor or stepping in and removing the victim from the
hostile work environment by, for example, a transfer. But
as our ever expanding Title VII caseload shows, there are
instances when employers ignore these two alternatives and
opt instead to either turn a blind eye or let their internal
procedures run their course while the hostile work
environment remains unchanged. With these realities in
mind, if we were to hold that a constructive discharge does
not constitute a tangible employment action, employers
would undoubtedly catch on to the availability of the
affirmative defense even if the victimized employee resigns
from objectively intolerable conditions at work. Under such
a rule, the temptation of employers to preserve their
affirmative defense would be overwhelming in many
situations. Some employers might wish for an employee to
quit voluntarily; others might even tacitly approve of
increased harassment to achieve that result. In any event,
the benefits of stepping in to remedy the hostile work
environment are measurably cloudier.
   These are exactly the sorts of incentives that courts
should take pains to avoid. If anything, our decision should
be guided by the paramount policy objectives set forth in
Ellerth and Faragher: “to prevent sexual harassment from
occurring . . . [by] informing employees of their right to
raise and how to raise the issue of harassment,” and “to
encourage victims of harassment to come forward [without
requiring] a victim to complain first to the offending
supervisor.” Faragher, 524 U.S. at 806 (quotations and
citations omitted). By holding that a constructive discharge
constitutes a tangible employment action, we effectively
encourage employers to be watchful of sexual harassment
in their workplaces and to remedy complaints at the
earliest possible moment; otherwise, they risk losing the
benefit of the affirmative defense should victimized
employees feel compelled to resign.
  Nor do we believe that our holding today discourages
responsible behavior on the part of victimized employees.
Because of the stringent test for proving constructive
discharge, as set forth in part III.B, supra, it is highly
unlikely that employees will walk off the job at the first sign
of harassment and expect to prevail under Title VII.
                              47


Because plaintiffs are expected to show intolerable
conditions and reasonable responses to the alleged
harassment, the strategy of resigning and then mixing
constructive discharge with Title VII claims will ultimately
fail in the absence of a genuine constructive discharge
situation.
  For the reasons set forth above, we hold that a
constructive discharge, when proved, constitutes a tangible
employment action within the meaning of Ellerth and
Faragher. With respect to her appeal, we hold that, because
Suders raised genuine issues of material fact as to her
claim of constructive discharge, the PA State Police is
precluded from asserting the affirmative defense to liability
advanced in support of its motion for summary judgment.
These issues require a trial on the merits. Should Suders
persuade the finder of fact that she was constructively
discharged, the PA State Police shall be strictly liable for
any actionable hostile environment. If Suders does not
prevail on her claim of constructive discharge, the PA State
Police may be entitled to invoke the affirmative defense. In
any event, we will reverse the District Court’s grant of
summary judgment and remand for a disposition on the
merits in accordance with our opinion.

                             IV.
   In summary, we concur with the District Court insofar as
it held that Suders had raised genuine issues of material
fact as to her claim of a sexually hostile work environment
in violation of Title VII. Nevertheless, the District Court
improperly granted summary judgment in favor of the PA
State Police on the basis of the affirmative defense in Ellerth
and Faragher. Specifically, we hold that the District Court
erred in failing to address Suders’s claim of constructive
discharge. On the basis of the record presented to the trial
court, we hold that Suders raised genuine issues of
material fact as to her claim of constructive discharge.
Finally, we hold that a constructive discharge, when proved
in accordance with the requirements set forth above in part
III.B, supra, constitutes a tangible employment action
within the meaning of Ellerth and Faragher. This precludes
                             48


the PA State Police’s assertion of the affirmative defense in
its motion for summary judgment.
   In closing, we are cognizant of the possibility that our
decision today may raise thorny evidentiary issues in the
trial courts. In part III.B, supra, we noted that a plaintiff
alleging a constructive discharge must establish the
convergence     of   two     factors:  (1)  harassment     or
discrimination so intolerable that a reasonable person in
the same position would have felt compelled to resign; and
(2) the employee’s decision to resign was reasonable under
the circumstances. As to the second factor, whether the
employee explored alternative avenues to resolve the alleged
harassment may be relevant, although a failure to do so
may not prove fatal to the employee’s claim. Conceivably,
then, it may be relevant to a claim of constructive discharge
whether an employer had an effective remedial scheme in
place, whether an employer attempted to investigate, or
otherwise to address, plaintiff ’s complaints, and whether
plaintiff took advantage of alternatives offered by
antiharassment programs. These are, of course, the same
considerations relevant to the affirmative defense in Ellerth
and Faragher.
   The difficulty is that once a plaintiff proves a tangible
employment action by establishing a constructive
discharge, Ellerth and Faragher unequivocally hold that the
employer is strictly liable for any actionable harassment
without regard to the affirmative defense. Ellerth, 524 U.S.
at 765; Faragher, 524 U.S. at 808. Therefore, at the point
at which a constructive discharge is proved, the
considerations pertaining to the affirmative defense become
irrelevant. Durham Life, 166 F.3d at 149 (“Although
Durham presents extensive evidence and argument about
its antiharassment policies, we find that they are not
relevant to this case because Evans’s supervisors took
tangible adverse employment action against her.”) (emphasis
added). Consequently, there is a substantial risk that the
test for constructive discharge may become a back door for
the introduction of evidence amounting to the assertion of
the affirmative defense to liability.
  In a similar context, we noted the problems inherent in
such a counterfactual inquiry. Defendant in Durham Life
                                  49


argued that, even assuming plaintiff could prove a tangible
employment action, the victimized employee should have
reported the first instance of harassment, which would
have allowed it to investigate and remedy the problem. 166
F.3d at 154. In response, we stated:
     [W]e decline to investigate whether, if Evans had
     complained early on, the sexual harassment policy at
     Durham would have prevented the tangible adverse
     actions that occurred afterwards. The difficulty of
     making such a counterfactual inquiry counsels against
     injecting    this   question    into   already-complex
     discrimination cases . . . . [W]ere we to allow an
     affirmative defense every time an employer could argue
     that the plaintiff had some non-tangible notice of
     discrimination before adverse action was taken against
     her, the Ellerth/Faragher distinction between cases
     with tangible adverse action and cases without such
     action would become hopelessly confused.
Id. (emphasis in original).
   In the context of constructive discharge cases, however,
there may be instances where District Courts have to
engage in this complex inquiry. It is difficult to generalize
about constructive discharge cases. The comparative merit,
quantum of proof, and factual setting will differ markedly
from case to case. Discovery and trial testimony may reveal
any of the following: substantial proof of constructive
discharge, the absence of an effective remedial program,19
or an otherwise effective antiharassment program that
failed to address a particular plaintiff ’s complaints. In
those cases, courts should carefully weigh the relevance of

19. See Faragher, 524 U.S. at 808 (“While the City would have an
opportunity to raise an affirmative defense if there were any serious
prospect of its presenting one, it appears from the record that any such
avenue is closed. The District Court found that the City had entirely
failed to disseminate its policy against sexual harassment among the
beach employees and that its officials made no attempt to keep track of
the conduct of supervisors like Terry and Simpson. . . . Under such
circumstances, we hold as a matter of law that the City could not be
found to have exercised reasonable care to prevent the supervisor’s
harassing conduct.”).
                              50


evidence relating to an employer’s antiharassment program,
in light of our observations in Durham Life.
   Conversely, the evidentiary record may reveal scant
support for a constructive discharge; or the evidence, while
falling short of compelling, may raise genuine issues of
material fact relating to the constructive discharge. In those
cases,    some      evidence    regarding     an   employer’s
antiharassment program or an employee’s response to the
alleged harassment may be admissible for the limited
purpose of determining whether a constructive discharge
has occurred.
  In the final analysis, we rely on the wisdom and expertise
of trial judges to exercise their gatekeeping authority when
assessing whether all, some, or none of the evidence
relating to employers’ antiharassment programs and to
employees’ exploration of alternative avenues warrants
introduction at trial. Of course, there may be instances
when some evidence of this kind is admitted, yet the
plaintiff ultimately prevails on a constructive discharge
claim. In these cases, instructions to the jury regarding the
admissibility of such evidence for limited purposes may
cure any harm caused by its earlier introduction. Clear and
concise jury verdict forms may also diminish the risk of
confusion. Although these are complex issues, they are
similar in kind to admissibility questions that trial judges
are asked to decide on a regular basis.
  For the reasons set forth above, we will reverse the
judgment of the District Court as to Suders’s Title VII claim
against the PA State Police, and we will remand the case for
a disposition of that claim on the merits consistent with our
opinion.

A True Copy:
        Teste:

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