                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-30-2004

Bacone v. Phila Housing Auth
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2392




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"Bacone v. Phila Housing Auth" (2004). 2004 Decisions. Paper 311.
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                                                 NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                        No. 03-2392




                   STANLEY BACONE;
                   JUDY BACONE, H/W

                         Appellants

                              v.

         PHILADELPHIA HOUSING AUTHORITY;
                  TONY MILLER;
                  ANGELA ALLEN


ON APPEAL FROM AN ORDER OF UNITED STATES DISTRICT
 COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                  (Dist. Court No. 01-CV-419)
         District Court Judge: Thomas N. O’Neill, Jr.


         Submitted Under Third Circuit LAR 34.1(a)
                    September 15, 2004




     Before: ALITO, AMBRO, and FISHER, Circuit Judges
                                (Filed September 30, 2004)

PER CURIAM:

       We need not review the background of this case because this opinion is only for

the benefit of the parties. Plaintiff’s arguments challenging the District Court’s decisions

are without merit. We affirm on all counts.

       First, considering all of the circumstances, Officer Bacone failed to raise a triable

issue of material fact over whether the evidence of sexual harassment was pervasive

enough to alter the terms of his employment. 1 See Harris v. Forklife Sys., Inc., 510 U.S.

17, 21-22 (1993); Knabe v. Boury Corp., 114 F.3d 407, 410 (3d Cir. 1997). The behavior

at issue involved no more than four incidents during the span of two weeks, and though

they were offensive, they are not pervasive enough rise to the level of a Title VII

violation. See, e.g., Adusumilli v. City of Chicago, 164 F.3d 353 (7 th Cir. 1998). In

addition, Officer Allen was not in a position of power relative to Officer Bacone. See

Quantock v. Shared Marketing Services, Inc., 312 F.3d 899, 904 (7 th Cir. 2002).

       Even if the conduct at issue were sufficiently severe and pervasive, it ceased as

soon as Officer Bacone filed a complaint with the Pennsylvania Housing Authority

(“PHA”). A856, A859. “[W]hen an employer’s response stops the harassment, there can

be no employer liability under Title VII.” Weston v. Pennsylvania, 251 F.3d 420, 427 (3d


       1
        Nor is the conduct at issue severe enough to establish a hostile work environment
per se. Cf. Becker v. Ulster County, 167 F. Supp. 2d 549 (N.D.N.Y. 2001) (attempted
rape considered per se harassment).

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Cir. 2001); Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir. 1999).

       Second, Officer Bacone failed to raise a genuine issue of material fact regarding

the retaliation claim. See Weston, 251 F.3d at 430 (describing prima facie case). Sixteen

months after the PHA learned of Officer Bacone’s complaint and soon after he became

Chief of Police, Chief Zappile began stringently enforcing the PHA’s no-beard policy for

patrol officers. A1020-21. There is no evidence that he did so because of Bacone’s

sexual harassment complaint, 2 and the record shows that at least three other officers were

required to shave their beards to remain on patrol. A1024-25. Without more, these facts

could not survive summary judgment on the causation issue. Cf. Farrell v. Planters

Lifesavers Co., 206 F.3d 271, 283-84 (3d. Cir 2000) (causation inferred from dismissal

within one month of alleged incident, plus additional circumstances).

       In any event, Officer Baccone’s reassignments may not qualify as an “adverse

employment action.” See Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995). Based

on objective factors like hours, pay, benefits, and seniority, the new positions were

essentially the same as the patrol job. A970-74. See Robinson v. City of Pittsburgh, 120

F.3d 1286, 1300 (3d Cir. 1997) (“retaliatory conduct must be serious and tangible enough

to alter an employee's compensation, terms, conditions, or privileges of employment”).




       2
        It appears that Chief Zappile did not learn of Bacone’s complaint until after he
reassigned him to operations. This alone would vitiate the retaliation claim. See Jones v.
School Dist. of Phila., 198 F.3d 403, 415 (3d Cir. 1999); Krouse v. American Sterilizer
Co., 126 F.3d 494, 505 (3d Cir. 1997).

                                             3
       Finally, the District Court did not abuse its discretion by issuing a protective order

precluding Bacone from conducting discovery into the Ferber case. The events in

question occurred roughly twenty years ago, and the fruits of the investigation would

likely be prejudicial character evidence. See Fed. Rule Evid. 404(b) (2004). Evidence

that Commander Rosenstein engaged in investigational improprieties in the past would

lead a jury to the prohibited inference that his investigation of the Bacone allegations was

also tainted. “This is the very evil that Rule 404(b) seeks to prevent.” Becker v. ARCO

Chem. Co., 207 F.3d 176, 192-93 (3d Cir. 2000) (quoting United States v. Morley, 199

F.3d 129, 134 (3d Cir. 1999)).

       Bacone remained free to show that the PHA’s investigation into his complaints

was tainted by pointing to any circumstances surrounding that event. He was only barred

from conducting a temporally and factually unconnected inquiry that could easily devolve

into a confusing, time-wasting and misleading mini-trial. See Red. Rule Evid. 403

(2004). The District Judge’s decision easily passes muster under the abuse of discretion

standard. See Camiolo v. State Farm Fire and Casualty Co., 334 F.3d 345, 354 (3d Cir.

2003); Ferrero, U.S.A., Inc. v. Oak Trading, Inc., 952 F.2d 44, 48 (3d Cir. 1991). The

District Court’s summary judgment and evidentiary Orders are therefore AFFIRMED.




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