                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-22-2001

Weston v. Pennsylvania
Precedential or Non-Precedential:

Docket 99-1608




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Filed May 22, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1608

MICHAEL A. WESTON; DEBORAH WESTON, H/W,
       Appellants,

v.

COMMONWEALTH OF PENNSYLVANIA d/b/a
DEPARTMENT OF CORRECTIONS; STA TE
CORRECTIONAL INSTITUTION AT GRATERFORD;
DOLORES MERITHEW.

APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 98-cv-03899)
District Judge: The Honorable James M. Kelly
U.S. Magistrate Judge: The Honorable Thomas J. Rueter

ARGUED: September 13, 2000

Before: BECKER, Chief Judge, NYGAARD, and AMBRO,
Circuit Judges.

(Filed: May 22, 2001)
       Thomas M. Holland, Esq.
       Jeffrey Campolongo, Esq. (Argued)
       1522 Locust Street
       Grace Hall
       Philadelphia, PA 19102

        Counsel for Appellants

       Randall J. Henzes, Esq. (Argued)
       Office of Attorney General
        of Pennsylvania
       21 South 12th Street, 3rd Floor
       Philadelphia, PA 19107

        Counsel for Appellee

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Appellant Michael Weston filed a sexual harassment civil
action against his employer, the Pennsylvania Department
of Corrections ("PDOC"), and Dolor es Merithew, a co-
worker. Weston alleged violations of T itle VII, the
Pennsylvania Human Relations Act ("PHRA"), and
Pennsylvania common law. Weston's Title VII claim was
premised on a hostile work environment theory.
Specifically, Weston asserted that he was subjected to a
hostile work environment as a result of the PDOC's failure
to discipline Merithew after she had physically touched
Weston on two occasions, and as a consequence of the
comments, jokes and jibes made by employees and inmates
who had learned of the incidents. In addition, Weston
alleged that, after he complained to the PDOC about this
harassment, the PDOC retaliated against him by
reprimanding him and transferring him to a less desirable
position.

The District Court dismissed Weston's T itle   VII claim for
"hostile work environment" sexual harassment   as well as
his state common law claims against the PDOC   for failure
to state a claim. The District Court granted   summary
judgment to the PDOC on Weston's retaliation   claim. After

                                 2
a bench trial, the District Court entered judgment in favor
of Weston and against Merithew on the r emaining state law
claims. Weston timely appealed. We have jurisdiction
pursuant to 28 U.S.C. S 1291.

In this appeal, Weston challenges the District Court's
disposition of both his hostile work environment claim and
his retaliation claim. With respect to the hostile work
environment claim, Weston asserts that it was error for the
court to dismiss for failure to state a claim, as his
complaint's allegations sufficed to make out a hostile work
environment claim, particularly in light of the liberal notice
pleading requirements contained in FED. R. CIV. P. 8. We
decide that Weston's allegations concer ning the PDOC's
response to the two incidents of physical touching were not
adequate to state a Title VII hostile work environment
claim, and we affirm the District Court's dismissal of that
portion of Weston's complaint. However , we also conclude
that Weston's allegations as to a hostile environment
created as a result of the comments, jokes, and jibes made
by co-workers and managers did meet the federal rules'
liberal pleading requirements, and we ther efore reverse the
District Court's dismissal of that component of W eston's
hostile work environment claim, and remand for further
discovery and proceedings. Finally, in r egard to Weston's
averments as to a hostile environment cr eated as a result
of verbal harassment on the part of inmates, while we agree
with the District Court that those allegations, as they
currently stand, do not suffice to state a T itle VII claim, we
reverse the court's dismissal, and remand with instructions
to grant Weston a specified period of time in which to
amend (and amplify) that portion of his complaint.

With respect to the retaliation claim, Weston avers that it
was error for the court to grant summary judgment,
because he succeeded in creating a genuine issue as to the
material fact that the PDOC took adverse action against
him, in the form of two written reprimands and two
suspensions without pay, as a result of his harassment
complaints. We conclude that, under the cir cumstances
present in Weston's case, the written r eprimands do not
constitute adverse employment actions. We further decide
that Weston failed to present sufficient evidence to establish

                               3
the requisite causal connection between the two
suspensions and his complaints. Accordingly, we affirm the
District Court's summary judgment grant on the r etaliation
claim.

I.

A. Factual Background

Weston is a corrections officer at the State Correctional
Institution at Graterford, Pennsylvania. At the time of this
action, he worked in the Food Services Department as a
trainer. His duties included supervising inmates who
worked in the prison's kitchen. Merithew is also a
corrections officer and held a similar position in the prison
kitchen. Although testimony indicates that W eston and
Merithew did not have an amicable working relationship, on
February 11, 1997, Merithew massaged Weston's back in
the presence of inmates. Weston found this physical contact
offensive and told Merithew to stop. Merithew laughed in
response, but apparently discontinued the activity.

Three days later, Weston tor e a visible hole in the seat of
his pants. While his back was turned, Merithew placed her
finger in the hole, touching his buttocks. As with the
previous incident, this act occurred in the presence of
inmates. Weston expressed his anger to Merithew and told
her to leave him alone.

Weston complained to his supervisor about Merithew's
actions, and she was given a written reprimand. Weston
claimed that, as a result of Merithew's actions, he was
subjected to offensive comments, jibes, and jokes made by
co-workers, managers and inmates. According to Weston,
the PDOC did not act in response to his complaints. In fact,
Weston was reprimanded by the PDOC and transferred to a
less desirable position.

B. Procedural Background

Weston sued both the PDOC and Merithew in the District
Court. Weston alleged that the PDOC violated Title VII and
the PHRA by failing to properly discipline Merithew after

                                4
Weston's complaints and that Weston was subjected to
repeated jokes, jibes, and offensive comments by co-
workers, managers and inmates. He also claimed that the
PDOC retaliated against him for complaining about
Merithew's conduct by reprimanding him and transferring
him to a less desirable position.

The PDOC first moved to dismiss Weston's complaint for
failure to state a claim upon which relief may be granted.1
See FED. R. CIV. P . 12(b)(6). On September 29, 1998, the
District Court granted the motion to dismiss, in part.
Specifically, the court determined that W eston's complaint
failed to allege facts that showed the PDOC was negligent in
disciplining Merithew, and it held that Weston failed to
establish the PDOC's liability under respondeat superior.
Further, the District Court found that the jokes and
offensive comments Weston experienced after the incidents
did not constitute a hostile working environment. However,
the District Court denied the PDOC's motion to dismiss
Weston's retaliation claim.

After limited discovery, the PDOC moved for summary
judgment on the remaining retaliation claim. Although
Weston may have suffered adverse employment actions, the
District Court held that he had not shown a causal
connection between these actions and his complaints about
Merithew's conduct. Even if he had established such a
connection, the District Court suggested that the outcome
would have been the same because the PDOC of fered a
nondiscriminatory reason for its actions.2
_________________________________________________________________

1. In his response to the PDOC's motion to dismiss, Weston conceded
that his state law claims for assault, battery, intentional infliction of
emotional distress, and negligent infliction of emotion distress were
barred by sovereign immunity. Weston also abandoned his charge that
his transfer to a less desirable position was a r etaliatory action by the
PDOC.

2. Weston also sued Merithew individually. The District Court held a
bench trial on June 1, 1999, and found that Merithew had committed a
battery under state law. On June 3, 1999, the District Court entered
judgment in favor of Weston and against Merithew and awarded
compensatory damages in the amount of $1250.00.

                               5
II. Motion to Dismiss - The Hostile Work Environment
       Claims

We exercise plenary review when examining a motion to
dismiss pursuant to Federal Rule of Civil Pr ocedure
12(b)(6). Lorenz v. CSX Corp., 1 F .3d 1406, 1411 (3d Cir.
1993). We accept the allegations of the complaint as true
and draw all reasonable factual inferences in favor of the
plaintiff. Id. We will affir m a dismissal only if it appears
certain that a plaintiff will be unable to support his claim.
Wisniewski v. Johns-Manville Corp., 759 F .2d 271, 273 (3d
Cir. 1985). Our review of Weston's complaint reveals two
separate bases for hostile work environment sexual
harassment -- one concerning the conduct and actions of
the PDOC and Dolores Merithew and one concer ning
unidentified "coworkers, managers and inmates."
Complaint, P 18.

A. Hostile Work Environment Claims

Title VII of the Civil Rights Act of 1964 and the
Pennsylvania Human Relations Act make it unlawful for an
employer to "discriminate against any individual with
respect to his compensation, terms, conditions or privileges
of employment because of such individual's race, color,
religion, sex or national origin." 42 U.S.C.S 2000e-2(a)(1).3
Hostile work environment harassment occurs when
unwelcome sexual conduct unreasonably inter feres with a
person's performance or creates an intimidating, hostile, or
offensive working environment. Meritor Savs. Bank FSB v.
Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404 (1986)
(quoting 29 C.F.R. S 1604.11(a)(3)). In order to be
actionable, the harassment must be so severe or pervasive
that it alters the conditions of the victim's employment and
creates an abusive environment. Id. at 67, 106 S.Ct. at
_________________________________________________________________

3. The proper analysis under Title VII and the Pennsylvania Human
Relations Act is identical, as Pennsylvania courts have construed the
protections of the two acts interchangeably. See, e.g., Smith v. Pathmark
Stores, Inc., No. 97-1561, 1998 WL 309916, at *3 (E.D. Pa. June 11,
1998) (interpreting the two statutes concurr ently in a sexual harassment
case); Clark v. Commonwealth of Pennsylvania, 885 F.Supp. 694, 714
(E.D. Pa. 1995) (same in racial discrimination cases).

                               6
2405; see also Spain v. Gallegos, 26 F .3d 439, 446-47 (3d
Cir. 1994).

In Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S.Ct. 367
(1993), the Supreme Court clarified the elements of a
discrimination claim resulting from a hostile work
environment. In order to fall within the purview of Title VII,
the conduct in question must be severe and pervasive
enough to create an "objectively hostile or abusive work
environment -- an environment that a r easonable person
would find hostile -- and an environment the victim-
employee subjectively perceives as abusive or hostile." Id. at
21-22, 114 S.Ct. at 370-71. In determining whether an
environment is hostile or abusive, we must look at
numerous factors, including "the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere of fensive utterance;
whether it unreasonably interferes with an employee's work
performance." Id. at 23, 114 S.Ct. at 371. The Supreme
Court recently reaffirmed Harris' "severe and pervasive" test
in Faragher v. City of Boca Raton, 524 U.S. 775, 783, 119
S.Ct. 2275, 2283 (1998), and Burlington Indus., Inc. v.
Ellerth, 524 U.S. 724, 732, 118 S.Ct. 2257, 2265 (1998).

After the Supreme Court's Faragher/Ellerth decisions,
employers must do more that merely take corrective action
to remedy a hostile work environment situation. Employers
also have an affirmative duty to prevent sexual harassment
by supervisors. See Faragher, 524 U.S. at 793, 118 S.Ct. at
2293; Williams v. General Motors Corp., 187 F.3d 553, 561
(6th Cir. 1999). Although the Supreme Court has not
addressed hostile work environment claims arising from the
actions of a co-worker, we have developed a framework for
evaluating such a claim:

       Five constituents must converge to bring a successful
       claim for a sexually hostile work environment under
       Title VII: (1) the employee suffer ed intentional
       discrimination because of their sex, (2) the
       discrimination was pervasive and regular , (3) the
       discrimination detrimentally affected the plaintiff, (4)
       the discrimination would detrimentally affect a
       reasonable person of the same sex in that position, and
       (5) the existence of respondeat superior liability.

                                7
Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d
Cir. 1990) (footnote and citations omitted); accord Kunin v.
Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir. 1999).

B. Hostile Work Environment Harassment and Merithew's
Actions

In dismissing his complaint, the District Court
determined that Weston could not establish a prima facie
hostile work environment claim based on the PDOC's
failure to adequately reprimand Merithew. It concluded that
the alleged discrimination was not pervasive, r egular, or
objectively detrimental, and that respondeat superior
liability did not apply.

Weston alleged in his complaint that the PDOC was liable
for Merithew's harassment because it failed to pr event her
from assaulting him and did not adequately discipline her.
This argument has no merit. Our rule "envisions prompt
remedial action when the hostile environment is
discovered." Bouton v. BMW of N. America, Inc., 29 F.3d
103, 110 (3d Cir. 1994). In other wor ds, when the source of
the alleged harassment is a co-worker, a plaintiff must
demonstrate that the employer failed to provide a
reasonable avenue for complaint, or, if the employer was
aware of the alleged harassment, that it failed to take
appropriate remedial action. Kunin, 175 F.3d at 293 (citing
Andrews, 895 F.2d at 1486 (liability exists where the
defendant knew or should have known of the harassment
and failed to take prompt remedial action)); see also 29
C.F.R. S 1604.11(d)(1999) (employer is liable for co-worker
harassment if it knows or should have known of the
conduct, unless it can show that it took immediate and
appropriate corrective action.); Kracunas v. Iona Coll., 119
F.3d 80, 89 (2d Cir. 1997).

Under our jurisprudence, the PDOC's failure to prevent
an act of co-worker harassment, in and of itself, does not
end the hostile environment inquiry. After W eston officially
complained about Merithew's conduct, she received a
written reprimand for violating the PDOC's policies against
sexual harassment. Weston does not allege that the
offensive conduct continued after the r eprimand. We have
instructed that "an effective grievance pr ocedure -- one

                               8
that is known to the victim and that timely stops the
harassment -- shields the employer from T itle VII liability
for hostile environment." Bouton, 29 F.3d at 110. Moreover,
when an employer's response stops the harassment, there
can be no employer liability under Title VII. Kunin, 175
F.3d at 294 ("By definition, ther e is no negligence if the
[sexual harassment grievance] procedur e is effective.")
(citing Bouton, 29 F.3d at 110). The PDOC's grievance
procedure was obviously known to W eston (he filed a
complaint) and, by his own admission, it was ef fective.
Liability cannot be imputed to the PDOC for Merithew's
conduct or for its alleged failure to adequately reprimand
her.

C. Hostile Work Environment and the Comments, Jokes,
       and Jibes of Co-workers, Managers and Inmates

Weston's complaint averred that the PDOC should be
held liable for the comments, jokes, and jibes of inmates. In
Slayton v. Ohio Dept. of Youth Serv., 206 F.3d 669 (6th Cir.
2000), the Court of Appeals for the Sixth Cir cuit determined
that, without more, objectionable conduct by prison
inmates cannot, in and of itself, be a sufficient predicate for
a hostile work environment claim. Id. W e agree that
"prisoners, by definition, have breached prevailing societal
norms in fundamentally corrosive ways. By choosing to
work in a prison, corrections personnel have acknowledged
and accepted the probability that they will face
inappropriate and socially deviant behavior ." Id. (citations
omitted).

However, this is not an absolute rule. Prison liability for
inmate conduct may indeed apply when, for example, the
institution fails to take appropriate steps to remedy or
prevent illegal inmate behavior. See id.; Waymire v. Harris
County, Tex., 86 F.3d 424, 428-29 (5th Cir. 1996) (holding
that because prison took prompt remedial action, jailer did
not establish a hostile environment wher e a fellow jailer
circulated sexually offensive inmate drawing). Moreover, we
can find no authority which suggests that ther e is an
absolute bar to Title VII liability when prison personnel
encourage or instigate illegal inmate behavior .

Weston's complaint indicates that he was subjected to
comments, jokes, and jibes by unspecified inmates.

                               9
Complaint at P 18. Absent further amplification -- for
instance that prison officials encouraged the inmate's
comments, or that prison officials knew of the harassing
conduct but failed to remedy it -- this mer e allegation is
insufficient to state a Title VII claim. However, Weston
should have an opportunity to amend his complaint so as
to make allegations, if possible, as to prison officials'
instigation and/or knowledge of these events. W e believe
the District Court erred in not providing Weston an
opportunity to amend his complaint in this fashion. See
FED. R. CIV. P. 15(a); Shane v. Fauver, 213 F.3d 113 (3d Cir.
2000); Borelli v. City of Reading, 532 F.2d 950 (3d Cir.
1976). We reverse the District Court and remand with
instructions to grant Weston a specified period of time in
which to amend the complaint.

Weston's second basis for employer liability is more
complex. In his complaint, Weston alleges that he was
subjected to "sexually offensive comments, jokes and jibes
by fellow PDOC employees, managers and inmates."
Complaint at P 18. On appeal, he has ar gued that the
PDOC is liable for the jokes of its managers and W eston's
co-workers because of the PDOC's negligent r esponse to
these comments. His central argument is that the jokes,
jibes, and comments continued unabated, ther eby creating
a hostile work environment.

While the Supreme Court has stated that T itle VII grants
employees "the right to work in an environment free from
discriminatory intimidation, ridicule and insult," Meritor
Savs. Bank, 477 U.S. at 65, 106 S.Ct. at 2405, it has
likewise emphasized that not all workplace conduct that
has sexual overtones can be characterized as forbidden
harassment. See id. at 67, 106 S.Ct. at 2405-06. The
alleged harassment must affect a "ter m, condition or
privilege" of employment in order to fall within Title VII's
purview. Id. Moreover, the Supr eme Court has instructed
that a plaintiff must allege that the conduct at issue was
not merely tinged with offensive sexual connotations, but
actually constituted gender discrimination. See Oncale v.
Sundowner Offshore Servs. Inc., 523 U.S. 75, 79, 118 S.Ct.
998, 1002 (1998). The mere utterance of an epithet, joke, or
inappropriate taunt that may cause offense does not

                                10
sufficiently affect the conditions of employment to implicate
Title VII liability. See Schwapp v. T own of Avon, 118 F.3d
106, 110 (2d Cir. 1997).

Weston's complaint includes little detail about the
content of the offensive comments, jokes, and jibes.
Instead, it merely claims that they wer e the result of
Merithew's actions, and were made in retaliation for his
filing of a grievance against her. See Complaint at P 18. By
his own admission, the comments, jokes, and jibes were
not directed at his gender. In fact, W eston's complaint fails
to allege that he was targeted because of his gender. See
Oncale, 523 U.S. at 79, 118 S.Ct. at 1002. Furthermore,
the complaint makes no allegation that the conduct altered
the conditions of Weston's employment or cr eated an
abusive environment in which he had to work. See Meritor
Savs. Bank, 477 U.S. at 67, 106 S.Ct. at 2505-06 (quoting
Henson v. City of Dundee, 682 F.2d 897, 9040 (11th Cir.
1982)).

However, at oral argument, Weston's counsel argued that
his allegations were sufficient to survive a motion to
dismiss based on our liberal notice pleading r equirements.
See FED. R. CIV. P . 8. Generally, in federal civil cases, a
claimant does not have to set out in detail the facts upon
which a claim is based, but must merely pr ovide a
statement sufficient to put the opposing party on notice of
the claim. FED. R. CIV. P. 8; Remick v. Manfredy, 238 F.3d
248, 264 (3d Cir. 2001); Foulk v. Donjon Marine Co., 144
F.3d 252 (3d Cir. 1998). In Conley v. Gibson, 355 U.S. 41,
47-48, 78 S.Ct. 99, 103 (1957), the Supreme Court set out
the proper role of pleadings:

       The Federal Rules of Civil Procedure do not require a
       claimant to set out in detail the facts upon which he
       bases his claim. To the contrary, all the Rules require
       is a short and plain statement of the claim that will
       give the defendant fair notice of what the plaintif f's
       claim is and the grounds upon which it r ests. Such
       simplified "notice pleading" is made possible by the
       liberal opportunity for discovery and the other pr etrial
       procedures established by the Rules to disclose more
       precisely the basis of both claim and defense and to
       define more narrowly the disputed facts and issues.

                               11
       The Federal Rules reject the approach that pleading is
       a game of skill in which one misstep by counsel may be
       decisive to the outcome and accept the principle that
       the purpose of pleading is to facilitate a pr oper decision
       on the merits.

Id. (citations omitted); see also Universe Tankships, Inc. v.
United States, 528 F.2d 73, 75 (3d Cir . 1975) (notice
pleading requires a party only to "disclose adequate
information as the basis of his claim for r elief."); Quinones
v. United States, 492 F.2d 1269, 1273 (3d Cir. 1974) ("[A]
complaint should not be dismissed for failur e to state a
claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief").

Dismissal under FED. R. CIV. P. 12(b)(6) is inappropriate
because Weston's complaint states a claim for hostile work
environment and therefore provides adequate notice to the
defense. Although Weston's allegations ar e not strong, they
are nonetheless sufficient to meet our lenient standards of
notice pleading. See, e.g., Brokaw v. Mercer County, 235
F.3d 1000, 1014 (7th Cir. 2000). Complaints "need not
plead law or match facts to every element of a legal theory."
Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000)
(quoting Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir.
1998)); see also Powell v. Ridge, 189 F .3d 387, 394 (3d Cir.
1999); Caribbean Broad. Sys., Ltd. v. Cable & Wireless
P.L.C., 148 F.3d 1080, 1086 (D.C. Cir. 1998) ("[A] plaintiff
need not allege all the facts necessary to pr ove its claim.");
Atchinson v. District of Columbia, 73 F.3d 418, 421-22 (D.C.
Cir. 1996) ("A complaint . . . need not allege all that a
plaintiff must eventually prove . . ."); Gooding v. Warner-
Lambert Co., 744 F.2d 354, 357-59 (3d Cir . 1984)
(eschewing "highly technical pleading rules, which only
serve to trap the unwary practitioner," in favor of notice
pleading;) accord Sinclair v. Kleindienst , 711 F.2d 291, 293
(D.C. Cir. 1983) ("The Federal Rules of Civil Procedure do
not require a claimant to set out the pr ecise facts on which
the claim is based . . . . `Notice pleading' is sufficient.");
Williams v. Washington Metro. Ar ea Transit Auth., 721 F.2d
1412, 1418 n.12 (D.C. Cir. 1983); Fouche v. Jekyll Island-
State Park Auth., 713 F.2d 1518, 1525 (11th Cir. 1983).

                               12
Discrimination and other civil rights claims ar e clearly
subject to notice pleading. Conley involved a class action by
African-American railroad clerks who alleged that their
union had breached its duty of fair repr esentation and
discriminated against them in violation of the Railway
Labor Act, 45 U.S.C. S 151. In reversing the Rule 12(b)(6)
dismissal of the complaint, the Supreme Court r ejected
defendant's argument that dismissal was pr oper because
"the complaint failed to set forth specific facts to support its
general allegations of discrimination." Conley, 355 U.S. at
47, 78 S.Ct. at 99. Thirty-five years later , in Leatherman v.
Tarrant County, the Court reaffir med Conley and rejected
the suggestion that a " `heightened pleading standard' --
more stringent than the usual pleading r equirements of
Rule 8(a)--" should apply in civil rights cases. 507 U.S. at
164, 167-68, 113 S.Ct. at 1160-62.

Therefore, although we question the merits of Weston's
claim for hostile work environment due to the comments,
jokes, and jibes of his co-workers and managers, he has
satisfied the extremely lenient requir ement of notice
pleading. We will reverse the District Court and remand
that portion of the case with instructions to per mit further
discovery.

We note that, at this stage of the litigation, Weston does
not present the most compelling of Title VII hostile work
environment claims. Were this an appeal from a grant of
summary judgment, we would be hard-pressed to reverse a
disposition in PDOC's favor. However, this is an appeal from
a 12(b)(6) dismissal and, although we consider the question
to be an extremely close one, we conclude that Weston's
allegations of a hostile work environment cr eated by the
remarks of co-workers and managers suffices to state a
Title VII claim.

III. Summary Judgment - The Retaliation Claim

To establish a prima facie case of r etaliation, a plaintiff
must show that: (1) he or she engaged in a pr otected
employee activity; (2) the employer took an adverse
employment action after or contemporaneous with the
protected activity; and (3) a causal link exists between the

                               13
protected activity and the adverse action. See Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 297 (3d Cir. 2000);
see also, e.g., Kachmar v. Sungard Data Sys., Inc., 109 F.3d
173, 177 (3d Cir. 1997); Krouse v. American Sterilized Co.,
126 F.3d 494, 500 (3d Cir. 1997) (describing the third
requirement as a "causal connection"); Jalil v. Avdel Corp.,
873 F.2d 701, 708 (3d Cir. 1989).

It is undisputed that Weston's sexual harassment
complaint to his supervisor on February 15, 1997, and his
similar inquiries on February 26, March 26, and April 25
were protected activities. See DiIenno v. Goodwill Indus. of
Mid-Eastern Pennsylvania, 162 F.3d 235, 236 (3d Cir.
1998). Moreover, his filing of a complaint with the Equal
Opportunity Employment Commission on July 16, 1997,
was also protected. See Robinson v. City of Pittsburgh, 120
F.3d 1286, 1300 (3d Cir. 1997).

The District Court identified four adverse employment
actions, the second element of a prima facie case. First,
Weston suffered two suspensions without pay in June and
August of 1998. It is not disputed that these suspensions
were adverse employment actions. However , the parties
disagree on whether the written reprimands on March 3,
1997, and May 15, 1997, can be similarly characterized.
We have specifically found oral reprimands not sufficiently
adverse to qualify under the statute. See Robinson, 120
F.3d at 1301 (holding that unsubstantiated oral reprimands
and unnecessary derogatory comments wer e not adverse
employment actions in a retaliatory conduct case). The
District Court, however, found Weston's written reprimands
distinguishable from oral reprimands and therefore held
that they were adverse employment actions. In the
circumstances of this case, we disagree.

A. The Written Reprimands

Title VII specifically prohibits action which would "deprive
or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an
employee." 42 U.S.C. S 2000e-2(a). The Supr eme Court has
defined a tangible, adverse employment action as a
"significant change in employment status, such as hiring,

                               14
firing, failing to promote, reassignment, or a decision
causing a significant change in benefits." Burlington Indus.
Inc. v. Ellerth, 524 U.S. 742, 749, 118 S.Ct. 2257, 2268
(1998). In the context of this case, Weston must show,
among other things, that these written reprimands affected
the terms or conditions of his employment.

The District Court believed that Weston satisfied this
burden because the reprimands in question were written
instead of oral. Additionally, the District Court stressed
that the reprimands were placed in W eston's personnel file
for a period of six months.4 The District Court found that
these reprimands rose to a level serious enough to trigger
employer liability because of their "presumed" effect on
compensation, terms, conditions or privileges of Weston's
employment.

We conclude, however, that Weston failed to establish
how these two reprimands effect a material change in the
terms or conditions of his employment. W e cannot,
therefore, characterize them as adverse employment
actions. Weston's own deposition testimony indicates that
he was not demoted in title, did not have his work schedule
changed, was not reassigned to a differ ent position or
location in the prison, did not have his hours or work
changed or altered in any way, and that he was not denied
any pay raise or promotion as a result of these reprimands.
Additionally, the reprimands were of a temporary nature.
Because they were not permanently affixed to Weston's
employment file, we cannot see how they changed or
altered his employment status in any way. Mor eover,
Weston suffered no reduction in pay, reassignment, firing,
or any similar employment action. Hence, we focus on
whether there was a causal connection between W eston's
protected activity and the two suspensions without pay that
he received on June 12, 1998 and July 31, 1998. We note
that the burden of establishing such a connection falls
upon Weston. See Farrell, 206 F.3d at 279.
_________________________________________________________________

4. At oral argument, counsel for the PDOC confirmed this practice and
additionally noted that although a written r eprimand may remain in a
correction officer's employment file longer than six months, a collective
bargaining agreement prohibits the PDOC from using or making
reference to any such reprimand older than six months.

                               15
B. Causation

On appeal, Weston presents several ar guments that there
was sufficient evidence to establish a causal connection
between the filing of his complaints and his two
suspensions. Initially, he argues that the timing of these
events suggests a connection between his complaints and
the adverse employment actions taken against him. W ith
one exception, we have never held that timing alone can be
sufficient to establish causation.5 We conclude that the
timing in this case is not unusual enough to become a
causal link.6

The one-day and three-day suspensions, which W eston
received in the summer of 1998, were mor e than a year
distant from his protected activities. Absent other evidence,
we cannot infer causation. See Krouse, 126 F.3d at 504 (a
nineteen month interlude between the protected activity
and the alleged retaliation, without any other evidence of
discriminatory animus in the interim, was insufficient as a
matter of law to support an inference of causation).

Next, Weston argues that the District Court erred by not
considering a "pattern of antagonism," which he believes
was evident throughout the entire course of events. Weston
relies on our opinion in Kachmar, wher e we held it was
improper for the District Court not to consider evidence
establishing such a pattern. 109 F.3d at 177. Kachmar is
not relevant to Weston's claims. In Kachmar, retaliatory
termination occurred one year after the protected action.
See id. at 177. Throughout the intervening year however,
there were numerous circumstances that suggested
_________________________________________________________________

5. In Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989), we found
that
an employee's dismissal two days after the company learned of his EEOC
complaint was sufficiently persuasive evidence to satisfy the causation
element of a prima facie case. Our holding in Jalil, however, is limited
to
the unusually suggestive facts of that case, which are not present in this
appeal.

6. We need not consider Weston's EEOC complaint. He does not argue
that the PDOC was aware of this filing. See Jones v. School Dist. of
Philadelphia, 198 F.3d 403, 415 (3d Cir . 1999) (requiring that the party
responsible for the adverse conduct be awar e of the protected activity
before causation can be inferred).

                                16
termination might occur, including statements that the
plaintiff was off the management track and that she should
start looking for another job. See id. at 178. We concluded
that the cumulative effect revealed a pattern of antagonism,
which overcame any doubts raised by the temporal
separation of events. Thus, we held that causation had
been established. Unlike Kachmar, the alleged pattern of
antagonism in this case did not portend any futur e
retaliation. Instead, the adverse employment actions were
discrete responses to particular occurr ences. Whereas a
pattern of antagonism was clear on the facts in Kachmar,
there is no evidence in this case that the PDOC's actions
were related.

Weston also argues that a causal connection can be
established by the inconsistent explanations the PDOC
provided for its reprimands. Inconsistent explanations can
be an alternative method for establishing a causal link
between a protected activity and adverse employment
actions. See Waddell v. Small Tube Pr ods., Inc., 799 F.2d
73, 77 (3d Cir. 1986). Weston contends that the PDOC gave
inconsistent accounts of whether other kitchen employees
had attendance records similar to W eston's. His argument
is unclear. Assuming arguendo that an inconsistency exists,
it still does not establish a causal connection because
Weston's two adverse employment actions wer e unrelated to
his attendance record.

Weston argues that the District Court erred by not
considering whether the PDOC's proffer ed explanations for
the adverse employment actions were a pr etext for
retaliation. Typically, pretext evidence is considered after a
prima face case is established and the defendant
has produced non-discriminatory or non-r etaliatory
explanations for that behavior. See Delli Santi v. CNA Ins.
Co. 88 F.3d 192, 199 (3d Cir. 1996) (noting that the familiar
McDonnell-Douglas burden shifting dichotomy applies to
retaliation claims).

Weston is correct that pretext evidence can be relevant to
causation. See Farrell, 206 F .3d at 287. As such, he argues
that his two 1998 suspensions -- justified by the PDOC as
discipline for attendance problems -- wer e imposed in
retaliation for his sexual harassment complaint. The

                               17
PDOC's explanations, the argument continues, were
pretextual. Such pretext, he maintains, evidences the
PDOC's motivation, which is directly relevant to causation.
In support of this position, he claims that other similarly
situated officers were not disciplined.

Weston's argument that the "attendance" justifications for
his suspensions were pretextual fails. First, Weston does
not dispute that his poor attendance was a valid r eason for
the discipline he received. He merely ar gues that he was
treated unfairly -- that he was punished while other
culinary service officers with the same attendance problems
were not. However, as the District Court noted, there were
at least four employees dismissed for attendance pr oblems
during the same period of time. In addition, the decisions
to suspend Weston were not made by his immediate
supervisor to whom he directed his sexual harassment
complaints. Although Weston's supervisor did play a role in
the suspensions, the suspensions were ultimately decided
upon by a panel of three hearing officers. 7 Thus, retaliatory
animus, whether for purposes of establishing causation or
pretext, cannot be ascribed to the hearing officers who
made the suspension determination. See Jones v. School
Dist. of Philadelphia, 198 F.3d 403, 415 (3d Cir. 1999)
(affirming a grant of summary judgment in a retaliation
claim on the basis that the responsible persons had no
information about the underlying protected discrimination
claim).

Weston simply cannot create a genuine issue of material
fact that his suspensions were imposed in r etaliation for his
sexual harassment claims. He cannot establish causation
or pretext.

IV. Conclusion

In summation, we will reverse that portion of the District
Court's dismissal of Weston's complaint as to the
_________________________________________________________________

7. Neither party addresses whether those hearing officers were aware of
Weston's sexual harassment complaints. However, the PDOC does
represent that the hearing officers wer e unaware of Weston's EEOC
filing.

                               18
allegations that the comments, jokes, and jibes of his co-
workers and managers created a hostile work environment
for which the PDOC would be liable, and we r emand the
cause for further discovery and proceedings. W ith regard to
that portion of Weston's complaint containing allegations
that comments, jokes, and jibes of inmates cr eated a hostile
work environment, we reverse the District Court and
remand with instructions to grant Weston a specified period
of time in which to amend the complaint. We affirm the
District Court's Fed. R. Civ. P. 12(b)(6) dismissal of
Weston's complaint against the PDOC in all other respects.

We likewise affirm the District Court's grant of summary
judgment in favor of the PDOC on Weston's r etaliation
claims.

A True Copy:
Teste:

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

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