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            Title Robinson v. City of Pittsburgh

 

            Date 1997

            By Alito

            Subject Sexual Harassment

                

 Contents

 

 

Page 1

LEXSEE 120 F.3D 1286

CARMEN L. ROBINSON; NATHANIEL HAWTHORNE, JR., Wife and Husband, Appellants v. CITY OF PITTSBURGH, EARL BUFORD, CRAIG B. EDWARDS; JAMES N. DICKERSON

No. 95-3594

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

120 F.3d 1286; 1997 U.S. App. LEXIS 17800; 74 Fair Empl. Prac. Cas. (BNA) 359; 71

Empl. Prac. Dec. (CCH) P44,983

January 6, 1997, Argued

July 14, 1997, Filed

PRIOR   HISTORY:             **1        ON   APPEAL   FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN  DISTRICT  OF  PENNSYLVANIA.  (D.C. Civil No. 94-1378).

DISPOSITION: Affirmed in part, reversed in part, and remanded.

LexisNexis(R) Headnotes

COUNSEL:  SAMUEL  J.  CORDES  (Argued),  OGG, JONES,   CORDES   &   IGNELZI,   L.L.P.,    245   Fort Pitt  Boulevard,   Pittsburgh,   PA  15222,   Attorney  for Appellants.

JACQUELINE R. MORROW, CITY SOLICITOR, JOHN G.   SHORALL   (Argued),                 Assistant   City   Solicitor, SUSAN   E.   MALIE,   Assistant   City   Solicitor,   City of  Pittsburgh,  Department  of  Law,  313  City-County Building, Pittsburgh, PA 15219, Attorneys for Appellee.

JUDGES:   Before:               GREENBERG,   COWEN,   and

ALITO, Circuit Judges.

OPINIONBY: ALITO

OPINION:   *1291   OPINION OF THE COURT

ALITO, Circuit Judge:

Appellants Carmen Robinson and Nathaniel Hawthorne, Jr. worked as police officers for appellee City of Pittsburgh

("the City"). Robinson alleges that she was sexually ha- rassed by appellee James Dickerson (her supervisor) and that appellees Craig Edwards (an assistant police chief) and  Earl  Buford  (the  chief  of  police)  knew  of  the  ha- rassment  but  failed  to  take  action  to  stop  it.  Robinson

asserted a variety of claims under both federal and state law against Dickerson,  Edwards,  Buford,  and the City. At **2    the close of plaintiffs' case,  the district court granted defendants' motion for judgment as a matter of law on several of Robinson's claims. The jury returned verdicts for defendants on the claims that remained. In this appeal, plaintiffs challenge the grant of judgment as a matter of law, a jury instruction, and certain evidentiary rulings. We affirm in part, reverse in part, and remand.

I.

Robinson began working as a Pittsburgh police offi- cer in 1990. Hawthorne, her husband, also worked as a police officer for the City. In January 1992, Robinson was assigned to a drug suppression unit commanded by then-

2  Lieutenant  Dickerson.  Hawthorne  worked  in  the same unit until June 1992,  and Robinson contends that after he left to begin a new assignment, Dickerson began sexually harassing her. According to Robinson,  the ha- rassment included unhooking her bra, snapping her bra strap, touching her hair and ears, telling her "you stink pretty," making comments about the size of her breasts, blowing her a kiss, asking her out for a drink, touching her leg under a table, putting his hands around her waist, dropping his keys down the back of her shirt and attempt- ing to retrieve them, and describing **3   the position in which he and Robinson would have sex if they were to do so. Robinson testified that she never acceded to any of Dickerson's sexual advances or reciprocated any of his sexual remarks and that she made it clear to him that his conduct was unwelcome.

In the fall of 1992,  Robinson approached Assistant Chief Edwards to inquire about a transfer to the detective bureau (which would have been a promotion). Edwards had no direct supervisory authority over Robinson,  but was  one  of  two  second-in--command  officers  who  re-

120 F.3d 1286, *1291; 1997 U.S. App. LEXIS 17800, **3;

74 Fair Empl. Prac. Cas. (BNA) 359; 71 Empl. Prac. Dec. (CCH) P44,983

Page 2

ported directly to Chief Buford. (App. 89-90;  585-86) Robinson testified that she told Edwards that she thought Dickerson "was hitting

on her " and "coming on to her ." (App. 146-47) She said that Edwards advised her to "wait it out" because he thought that Chief Buford might be leaving soon for an- other job. Edwards reportedly said that Buford might take Dickerson with him and that even if Dickerson remained, Buford's departure would allow Edwards to obtain power over Dickerson. (App. 147) Until then, however, Edwards allegedly told Robinson he could not do anything about Dickerson because Buford protected him. (App. 147-48) In addition, according to Robinson,   **4   Edwards told her  that  Buford  would  not  do  anything  to  help  her  be- cause Dickerson "had done this before" and Buford had not  done  anything  following  that  incident.  (App.  148) Robinson testified that she believed "waiting it out" was a "viable solution" and that she did not tell her husband about the harassment or do anything else about it at the time. (App. 149) n1

n1 In addition to this request, Robinson sought a transfer to the detective bureau on several other occasions,  but  she  never  succeeded  in  obtaining such a transfer.

In  May  1993,  Robinson  wrote  a  letter  to  Buford in  which  she  asked  to  meet  with  him.  According  to Robinson,  her  original  draft  of  the  letter,  prepared  in March or April 1993, stated that Dickerson was "coming on to her " and that she thought that this was "the rea- son for her  now bad reputation." (App. 168) Robinson recounted that she gave the letter to Edwards to look over and that Edwards told her that she could not send the letter through the chain of command because it was too **5

"specific in detail." According to Robinson, Edwards rec- ommended that she "just be specific about requesting a meeting." (App. 166-67) The original draft was never in- troduced in evidence. The letter that was actually sent to Buford requested a meeting in order to discuss "career goals" and "past conflicts" and to "seek guidance with fu- ture endeavors." The letter made no mention of *1292  sexual harassment. Upon receipt of the letter, Buford re- turned it to Robinson with a notation that it needed to be transmitted through the proper chain of command rather than sent directly to him.

In January 1994, Robinson was detailed to the crim- inal  intelligence  unit,  where  her  direct  supervisor  was Sergeant William Bochter and her second-line supervisor was Chief Buford. In this assignment, neither Dickerson nor  Edwards  possessed  any  supervisory  authority  over Robinson. In May 1994, Robinson met with Edwards, told him she was "fed up" with the harassment, and stated her

intention to file a complaint. She testified that Edwards recommended  that  she  file  a  complaint  with  the  Equal Employment Opportunity Commission ("EEOC").

A few weeks later, Robinson filed a complaint with

Bochter, who forwarded it **6   to Buford on May 31,

1994. On June 1, 1994, Robinson filed a complaint with the EEOC alleging that Dickerson had sexually harassed her, and on July 6, 1994, she filed a similar complaint with the  Bureau  of  Police  Office  of  Professional  Standards

("OPS").  OPS's  investigation,  which  was  completed  in September 1994, concluded that probable cause existed to  substantiate  Robinson's  claim.  n2  In  October  1994, Robinson  stopped  reporting  for  work,  and  she  has  not returned to her job since that time. She was nonetheless promoted to sergeant in February 1995.

n2  The  district  court  did  not  allow  the  OPS report itself to be introduced in evidence, but it per- mitted the investigating officer, Carla Gedman, to testify as to her conclusions on the ground that they were admissions by a party-opponent and thus not hearsay.

II.  In  August  1994,  Robinson  and  Hawthorne  filed suit in district court against the City,  Buford,  Edwards, and Dickerson. Under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-2(a), Robinson asserted **7  claims against the City for hostile work environment and quid  pro  quo  sexual  harassment  and  for  retaliation,  as well as a claim for hostile work environment sexual ha- rassment  against  Dickerson.  Under  42  U.S.C.  §  1983, she  asserted  claims,  based  on  alleged  violations  of  the Equal Protection Clause, against all four defendants. She claimed that all four were responsible for unconstitutional sex-based discrimination and that all but Dickerson were liable for unlawful retaliation. In addition, Robinson as- serted claims under Pennsylvania law for assault, battery, and  intentional  infliction  of  emotional  distress  against Dickerson.  Robinson  sought  punitive  damages  on  all claims.  Hawthorne  sued  Dickerson under  Pennsylvania law for loss of consortium. Dickerson counter-claimed against Robinson for defamation.

At the close of plaintiffs' case, defendants moved for judgment as a matter of law pursuant to Fed. R. Civ. P.

50(a).  The  district  court  granted  defendants'  motion  as to the Title VII hostile work environment claim against Dickerson because individuals cannot be liable under that statute. See Sheridan v. E.I. DuPont de Nemours and Co.,

100 F.3d 1061, 1077-78 (3d Cir. 1996) (en banc).   **8  The court granted the motion as to all of Robinson's §

1983  claims  against  the  City  on  the  ground  that  there was insufficient evidence of an unconstitutional policy or

120 F.3d 1286, *1292; 1997 U.S. App. LEXIS 17800, **8;

74 Fair Empl. Prac. Cas. (BNA) 359; 71 Empl. Prac. Dec. (CCH) P44,983

Page 3

custom. Furthermore, with respect to the Title VII retal- iation claim against the City (and in the alternative with respect to the § 1983 retaliation claim against the City, Buford, and Edwards), the court held that Robinson had not  shown  a  causal  link  between  her  protected  activity and any adverse employment action. The court granted the motion with respect to Robinson's Title VII quid pro quo claim against 5 the City because the court found in- sufficient  evidence  that  a  job  benefit  or  detriment  was conditioned upon Robinson's response to Dickerson's ad- vances or that her response to his advances in fact affected a tangible aspect of her employment. Moreover, the court granted defendants' motion as to the § 1983 claims against Buford and Edwards on the ground that there was insuffi- cient evidence that either was personally involved in any deprivation of Robinson's rights (as well as, with respect to  the  retaliation  theory,  on  the  alternative  ground  de- scribed above). Finally, the court granted the motion as to the intentional **9    infliction claim against Dickerson and struck Robinson's demand for punitive damages on all claims because there was insufficient evidence of out- rageous conduct.

The  claims  that  went  to  the  jury  were  thus  as  fol- lows: (1) the Title VII hostile work *1293   environment claim  against  the  City;  (2)  the  §  1983  sex  discrimina- tion  claim  against  Dickerson;  (3)  the  assault  and  bat- tery  claims  against  Dickerson;  (4)  Hawthorne's  loss  of consortium claim against Dickerson; and (5) Dickerson's defamation counter-claim. The jury returned verdicts for the defense on all of plaintiffs' claims, as well as a verdict for Robinson on the counter-claim.

Robinson appeals from the grant of judgment as a mat- ter of law on all claims except the Title VII and intentional infliction claims against Dickerson. n3 In addition,  she contests certain evidentiary rulings and a jury instruction that allegedly affected the jury's rejection of the claims that it was permitted to consider. Nothing is at issue in this appeal with respect to the defamation counter-claim, the assault and battery claims, or the loss of consortium claim.

n3 Robinson's statement of issues includes the question whether the court properly granted judg- ment as a matter of law on what she describes as her "claim" for punitive damages, Appellants' Br. at 2, but her brief does not mention this issue. She has therefore waived it.   Pennsylvania v. Dept. of Health and Human Services, 101 F.3d 939, 945 (3d Cir. 1996).

**10

We exercise plenary review over the district court's

grant of judgment as a matter of law. Delli Santi v. CNA Ins. Co., 88 F.3d 192, 200 (3d Cir. 1996). "Our role is to determine whether the evidence and justifiable inferences most favorable to the non-moving  party would have  afforded any rational basis" for a verdict in favor of the non-moving party. Id. (quotation omitted). We exercise plenary review over the jury instructions given by the dis- trict court in order to determine whether, read as a whole, the instructions stated the correct legal standard.  Miller v.  CIGNA  Corp.,  47  F.3d  586,  591  (3d  Cir.  1995)  (en banc). Finally, we review the district court's decisions to admit or exclude evidence for abuse of discretion, Glass v. Philadelphia Elec. Co., 34 F.3d 188, 191 (3d Cir. 1994), although our review is plenary as to the interpretation or application of a legal standard underlying such a decision. West v. Philadelphia Elec. Co., 45 F.3d 744, 752 (3d Cir.

1995). We will not reverse on the basis of an erroneous decision  to  admit  or  exclude  evidence  unless  the  error affected a "substantial right" of the aggrieved party. Id.

III.

Section 1983 **11   Equal Protection Claim Against

Buford, Edwards, and the City

To  prevail  on  her  §  1983  equal  protection  claim, Robinson was required to prove that she was subjected to

"purposeful discrimination" because of her sex. Keenan v. City of Philadelphia, 983 F.2d 459, 465 (3d Cir. 1993). Moreover, to hold Buford or Edwards liable under § 1983 for such an equal protection violation, Robinson was re- quired to prove that they personally "participated in vio- lating her  rights, . . . that they  directed others to violate them, or that they  . . . had knowledge of and acquiesced in their  subordinates' violations." Baker v. Monroe Twp.,

50 F.3d 1186, 1190-91 (3d Cir. 1995). See also Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990). Robinson does not contend that either Buford or Edwards personally engaged in any discriminatory conduct against her or that they directed anyone else to do so. Rather, her argument is that Buford and Edwards were aware of and acquiesced  in  Dickerson's  sexual  harassment.  We  must thus determine,  taking Robinson's evidence as true and giving her the benefit of all reasonable inferences, what Edwards and Buford knew about the **12   harassment, when they learned about it, and what, if anything, they did in response.

A. Robinson does not seek to hold Edwards liable for anything that he did or did not do following her May 1994 complaint.  Rather,  she  contends  that  she  told  Edwards in  1992  that  Dickerson  was  "hitting  on   her "  and  that Edwards "acquiesced" in Dickerson's conduct because he did  not  take  any  action  to  stop  Dickerson  but  instead told  Robinson  to  "wait  it  out"  because  Buford  and/or Dickerson might soon be changing jobs.

120 F.3d 1286, *1293; 1997 U.S. App. LEXIS 17800, **12;

74 Fair Empl. Prac. Cas. (BNA) 359; 71 Empl. Prac. Dec. (CCH) P44,983

Page 4

Edwards responds that the jury's verdict for the City on Robinson's Title VII hostile work environment claim conclusively establishes that he cannot be liable under §

1983 for acquiescing in her subjection to a hostile envi- ronment.  If  there  was  no  hostile   *1294    environment in the first place, Edwards's argument goes, then he log- ically cannot be liable for knowingly acquiescing in the existence of one. We reject this argument because, among other things, it ignores the fact that the jury's verdict does not  necessarily  mean  that  it  found  that  Robinson  was not subjected to a hostile work environment. Instead, the jury might have rejected her Title VII hostile work envi- ronment claim on the **13    ground that the City had an effective policy against sexual harassment. See, e.g., Bouton v. BMW of N. Am., Inc., 29 F.3d 103, 110 (3d Cir. 1994).

We agree with Edwards, however, that there was in- sufficient evidence to show that he knew of and acquiesced in Dickerson's alleged sexual harassment. It is true that the jury could have found that Edwards knew in 1992 that Dickerson was "hitting on" Robinson and that Edwards did not take any action to stop Dickerson's conduct. But it is  undisputed  that,  while  Edwards  had a  higher  rank than Dickerson, he possessed no actual supervisory au- thority over him. (App. 1031-32) Regardless of whether the evidence presented by Robinson would be adequate if Edwards had actual supervisory authority over Dickerson, we do not believe that Edwards can be held liable under

§ 1983 for failing to take action to correct the behavior of an individual over whom he had no actual control.

A  defendant  in  a   §  1983   action  must  have  per- sonal   involvement   in   the   alleged   wrongs."   Rode   v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (em- phasis added). See also, e.g., Andrews, 895 F.2d at 1478

("there must be some affirmative **14   conduct by the supervisor that played a role in the discrimination") (cit- ing Rizzo v. Goode, 423 U.S. 362, 377, 46 L. Ed. 2d 561,

96 S. Ct. 598 (1976)). Our cases have held that "actual knowledge and acquiescence" suffices for supervisory li- ability because it can be equated with "personal direction" and "direct discrimination by the supervisor." Id. (quot- ing  Rode,  845  F.2d  at  1207).  Where  a  supervisor  with authority over a subordinate knows that the subordinate is violating someone's rights but fails to act to stop the sub- ordinate from doing so, the factfinder may usually infer that the supervisor "acquiesced" in (i.e., tacitly assented to or accepted) the subordinate's conduct. n4 But where actual supervisory authority is lacking, mere inaction, in most  circumstances,  does  not  reasonably  give  rise  to  a similar inference. As a general matter, a person who fails to act to correct the conduct of someone over whom he or she has no supervisory authority cannot fairly be said to have "acquiesced" in the latter's conduct.

n4   See   Webster's   Third   New   International Dictionary 18 (1971);  Random House Dictionary of the English Language Unabridged Ed. 13 (1967).

**15

General  tort  principles  provide  a  useful  analogy. Unless a "master"-"servant" relationship exists, the cir- cumstances  in  which  one  person  may  be  held  liable for  a  tort  committed  by  another  are  quite  limited,  see Restatement (Second) of Torts §§ 876-878 (1977), and none  appears  to  be  applicable  here.  A  claim  against  a

"master" based on a tort committed by a "servant" bears a resemblance to a § 1983 claim against a government supervisor based on a constitutional tort committed by a subordinate, n5 but a person cannot be a "master" unless he or she has "the right to control the physical conduct" of the servant. Restatement (Second) of Agency § 2(1)

(1957). By analogy, we hold that, except perhaps in un- usual circumstances, a government official or employee who lacks supervisory authority over the person who com- mits a constitutional tort cannot be held, based on mere inaction, n6 to have "acquiesced" in the unconstitutional conduct.

n5 We do not suggest, however, that all rules ap- plicable to the former type of claim may be applied by analogy to the latter.

n6 Of course, if the government official or em- ployee had sufficient personal involvement in the constitutional tort, he or she may be held liable. In this context, the rules set out in §§ 876 and 877(a) of the Restatement (Second) of Torts provide useful guidance. Section 876 states:

For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he

(a) does a tortious act in concert with the other or pursuant to a common de- sign with him, or

(b) knows that the other's conduct con- stitutes a b reach of duty and gives sub- stantial assistance or encouragement to the other so to conduct himself, or

(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately con- sidered, constitutes a breach of duty to

120 F.3d 1286, *1294; 1997 U.S. App. LEXIS 17800, **15;

74 Fair Empl. Prac. Cas. (BNA) 359; 71 Empl. Prac. Dec. (CCH) P44,983

Page 5

the third person.

Section 877(a) provides:

For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he

(a)  orders  or  induces  the  conduct,  if he knows or should know of circum- stances that would make the conduct tortious if it were his own . . . .

*1295   Here, it is clear that Edwards did not control or have the right to control Dickerson's physical conduct in the performance of his job,  and Edwards is thus not liable for Dickerson's conduct. n7 Accordingly, we affirm the district court's grant of judgment as a matter of law to Edwards on Robinson's § 1983 equal protection claim.

**16

n7 All of our prior cases discussing the issue of supervisory  liability  for  "acquiescence"  involved defendants who had actual authority to control the conduct of the person alleged to have violated the plaintiff's  rights.  Our  decision  here  is  thus  fully consistent with our holdings in those cases.

For example, in Baker, 50 F.3d at 1193-94, we held that the officer who was in charge of a drug raid could be liable under § 1983 for certain allegedly illegal actions taken by the officers under his command where there was

"sufficient evidence to permit an inference that the com- manding officer  knew of and acquiesced in the treatment the plaintiffs  were receiving at the hands of the other officers acting under his supervision." 50 F.3d at 1193. The commanding officer indisputedly had the authority to control the conduct of the officers under his command. In Keenan, 983 F.2d at 465-68, the plaintiffs alleged that they were transferred in retaliation for protected ac- tivity, and the jury agreed. We held that four supervisors could  be  liable  under  §  1983  where  they  knew  of  the plaintiffs'   **17    protected  activity  and  approved  the transfers anyway.  Id. at 468. We concluded that "the evi- dence was  sufficient to establish that the plaintiffs were impermissibly  disciplined  by   the  four  supervisors   for conduct  that constituted  protected  activity." Id.  Keenan is distinguishable because the four supervisors approved the  transfers  and  possessed  formal  authority  over  their respective subordinates who recommended the transfers. In  Andrews,  895  F.2d  at  1478-79,  the  supervisors

not only had direct authority over the primary harassers but also were personally involved in the unconstitutional conduct. We upheld a verdict against one supervisor who

"personally participated in" and "condoned" the harass- ment perpetrated by other officers under his supervision. As to another supervisor, "the man who was ultimately responsible for the conduct of the Division," we held that the evidence supported the jury's finding that he was aware of the harassment and not only did nothing to stop it, but told the plaintiff that "you have to expect this working with the guys." Id. at 1479.

Robinson argues that Buford is liable under § 1983 for  Dickerson's  conduct  because  Buford   **18    "took absolutely no action to remedy Robinson's situation, and the evidence suggests that he thought Dickerson's con- duct a joke." Appellants' Br. at 22. We disagree, because we are unable to find any evidence that Buford had any knowledge of any alleged harassment before May 1994.

(As with Edwards, Robinson does not argue that Buford is liable based on anything he did or failed to do following her May 1994 complaint.)

Robinson testified that Edwards told her in 1992 that it  would  not  serve  any  purpose  for  him  to  forward  her complaint to Buford because Buford would not take it se- riously. It seems most doubtful that Edwards's statement would have been admissible at trial against Buford, but in any event this statement in no way tends to show that Buford in fact was aware in 1992 that Dickerson was sex- ually harassing Robinson. The uncontradicted evidence shows that Buford first learned of Robinson's complaint when  Bochter  told  him  about  it  on  May  31,  1994.  We therefore affirm the district court's grant of judgment as a  matter  of  law  to  Buford  on  Robinson's  §  1983  equal protection claim.

C. Our conclusion that Buford is not liable under §

1983  for  Dickerson's alleged  sexual  harassment   **19  requires us to reject as well Robinson's submission that the  City  is  liable  under  §  1983  for  Dickerson's  alleged sexual  harassment.  The  City,  as  a  municipality,  is  not liable through respondeat superior for the constitutional torts of its employees. Monell v. Dept. of Social Services,

436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Municipal  liability  attaches  only  "when  execution  of  a government's policy or custom, whether made by its law- makers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury" complained of.  Id. at 694. As we explained in Andrews:

*1296  A government policy or custom can be established in one of two ways. Policy is made when a decisionmaker possessing final authority to establish municipal policy with respect to the action issues an official procla-

120 F.3d 1286, *1296; 1997 U.S. App. LEXIS 17800, **19;

74 Fair Empl. Prac. Cas. (BNA) 359; 71 Empl. Prac. Dec. (CCH) P44,983

Page 6

mation, policy, or edict. A course of conduct is considered to be a "custom" when, though not authorized by law, such practices of state officials are  so permanent and well-settled as to virtually constitute law.

895 F.2d at 1480 (quotations omitted) (emendations in original).

Robinson does not argue that the City is liable because it maintained a "custom" of permitting **20   sexual ha- rassment. Rather, she asserts that the City is liable through Buford, who is concededly a policymaker whose conduct is attributable to the City. In accordance with our hold- ing that Buford is not liable under § 1983 for Dickerson's alleged sexual harassment, we conclude that the City like- wise is not liable under § 1983. We therefore affirm the district court's grant of judgment as a matter of law to the City on Robinson's § 1983 equal protection claim.

IV.

Title  VII  Quid  Pro  Quo  Sexual  Harassment  Claim

Against the City

In  addition  to  claiming  that  Dickerson's  sexual  ha- rassment created a hostile work environment, Robinson alleged that Dickerson engaged in quid pro quo sexual harassment, for which the City was liable under Title VII. The district court granted judgment as a matter of law for the City on this claim,  but we hold that Robinson pre- sented sufficient evidence to go to the jury on this claim. n8

n8 We reject at the outset defendants' contention that there is no evidence that Dickerson ever made a  sexual  advance  to  Robinson.  The  record  is  re- plete with evidence of implicit sexual advances, so we take defendants to mean that only an explicit request for sex qualifies as a sexual advance. We disagree. We note simply that the evidence previ- ously summarized concerning Dickerson's alleged statements and actions would have entitled the jury to  find  that  Dickerson  made  sexual  advances  to Robinson.

**21

A. This court has not yet had occasion to consider the elements of a quid pro quo claim, but we agree with the formulation set out in 29 C.F.R. § 1604.11(a)(1) and (2), which provides:

Unwelcome  sexual  advances,  requests  for sexual  favors,  and  other  verbal  or  physical

conduct of a sexual nature constitute sexual harassment when (1) submission to such con- duct  is  made  either  explicitly  or  implicitly a  term  or  condition  of  an  individual's  em- ployment or  (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individuals. . ..

See also, e.g., Heyne v. Caruso , 69 F.3d 1475, 1478 (9th

Cir.  1995);  Cram  v.  Lamson  &  Sessions,  49  F.3d  466,

473 (8th Cir. 1995); Karibian v. Columbia University ,

14 F.3d 773,  777 (2d Cir. 1994); Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1416 (10th Cir. 1993); Lipsett v. University of Puerto Rico, 864 F.2d 881, 898

(1st Cir. 1988). n9

n9 Courts have unanimously held that an em- ployer is strictly liable for quid pro quo harassment by a supervisor having actual or apparent author- ity to carry out the threat or promise that is made to  the  victim.  See  Karibian,  14  F.3d  at  777.  See also Meritor Sav. Bank, FSB v. Vinson, 477 U.S.

57,  76,  91 L. Ed. 2d 49,  106 S. Ct. 2399 (1986)

(Marshall, J., concurring in the judgment) ("every Court of Appeals that has considered the issue has held that sexual harassment by supervisory person- nel is automatically imputed to the employer when the harassment results in tangible detriment to the subordinate employee"). This rule differs from that which applies in a hostile work environment case. See  Bouton  v.  BMW  of  N.  Am.,  Inc.,  29  F.3d

103,  106-07  (3d  Cir.  1994).  This  distinction  has been criticized, see, e.g., J. Hoult Verkerke, Notice Liability in Employment Discrimination Law,  81

Va. L. Rev. 273, 277 (1995), but since the parties here have not addressed the issue, we assume that the City would be liable for any quid pro quo sexual harassment committed by Dickerson.  Cf.  Bouton,

29 F.3d at 106-07 (stating, in a case involving only a hostile environment claim, that "without the agency relationship, quid pro quo harassment would be im- possible, so the employer is responsible").

**22

Under this test, the consequences attached to an em- ployee's response to the sexual advances must be suffi- ciently severe as to alter the employee's "compensation,

*1297   terms, conditions, or privileges of employment,"

42 U.S.C. § 2000e-2(a)(1), or to "deprive or tend to de- prive him or her  of employment opportunities or other- wise adversely affect his or her  status as an employee."

120 F.3d 1286, *1297; 1997 U.S. App. LEXIS 17800, **22;

74 Fair Empl. Prac. Cas. (BNA) 359; 71 Empl. Prac. Dec. (CCH) P44,983

Page 7

42 U.S.C.  § 2000e-2(a)(2). This does not mean that the employee must be threatened with or must experience "

'economic' or 'tangible' discrimination." Meritor, 477 U.S. at 64. See also Harris v. Forklift Systems, Inc., 510 U.S.

17,  21,  126 L. Ed. 2d 295,  114 S. Ct. 367 (1993). But by the same token, not every insult, slight, or unpleasant- ness gives rise to a valid Title VII claim. In Meritor, the Supreme Court noted that "not all workplace conduct that may be described as 'harassment' affects a 'term, condi- tion, or privilege of employment.' " 477 U.S. at 67. The Court also suggested that the " 'mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee' would not affect the conditions of employment to a  sufficiently significant degree to violate Title VII." Id. (quoting Rogers   **23    v. EEOC, 454 F.2d 234, 238

(5th Cir. 1971)). Thus, whether in a hostile work environ- ment case or a quid pro quo case, objectionable conduct attributable to an employer is not always sufficient to alter an employee's terms, conditions, or privileges of employ- ment and is thus not always sufficient to violate Title VII. Subsections  (1)  and  (2)  of  29  C.F.R.  §  1604.11(a) differ in that subsection (1) addresses cases in which an employee is told beforehand that his or her compensation or some other term, condition, or privilege of employment will be affected by his or her response to the unwelcome sexual advances, whereas subsection (2) addresses cases in which the employee's response to sexual advances is thereafter used as a basis for a decision concerning com- pensation, etc. Under subsection (1), a quid pro quo vi- olation occurs at the time when an employee is told that his or her compensation, etc. is dependent upon submis- sion  to  unwelcome  sexual  advances.  At  that  point,  the employee has been subjected to discrimination because of sex. (This is so, of course, because, if the employee had been a member of the opposite sex, his or her com- pensation, etc. presumably would not have been **24  made dependent on submission.)  Whether the employee thereafter submits to or rebuffs the advances, a violation has nevertheless occurred. Like the Second Circuit,  we

"do not read Title VII to punish the victims of sexual ha- rassment who surrender to unwelcome sexual encounters.

. . . The supervisor's conduct is equally unlawful under

Title VII whether the employee submits or not." Karibian,

14 F.3d at 778. n10

n10  Whether  the  employee  "submitted  to  the supervisor's advances is certainly relevant" because it bears on "the issue whether the sexual advances were unwelcome, not whether unwelcome sexual advances were unlawful." Karibian, 14 F.3d at 779. In this case, it is undisputed that Robinson refused to submit to Dickerson's alleged advances, and it is clear that the jury would have been entitled to find

that the advances were unwelcome.

Similarly,  there  is  a  violation  under  subsection  (1) even if the employee rebuffs the advances and his or her compensation, terms, conditions, or privileges of employ- ment **25    are not in fact altered, i.e., even if the su- pervisor does not follow through on his or her threat. The threat is sufficient to constitute "discrimination . . . with respect to . . . compensation, terms, conditions, or privi- leges of employment, because of . . . sex." n11 42 U.S.C.

§ 2000e-2(a)(1). But see Gary v. Long,  313 U.S. App. D.C. 403, 59 F.3d 1391, 1396 (D.C. Cir. 1995).

n11 The fact that no adverse action was taken is of course relevant to the question whether a threat or promise was made.

Under subsection (2), a plaintiff must make a showing that differs significantly from that required under subsec- tion (1). Under subsection (2), the plaintiff must show that his or her response to unwelcome advances was subse- quently used as a basis for a decision about compensation, etc. Thus, the plaintiff need not show that submission was linked to compensation, etc. at or before the time when the advances occurred. But the employee must show that his or her response was in fact used thereafter as a basis for a decision affecting **26   his or her compensation, etc.

*1298   B. Robinson contends that Dickerson linked her response to his advances to the job detriments of "a bad reputation at work" and "unjust reprimands." Appellants' Br. at 28-29. Robinson explains that "many times after Robinson would reject him, Dickerson unjustifiably rep- rimanded her in a very harsh manner and in front of other officers; he continuously bothered her at work, even when she was not under his direct command; he phoned her at home and work for reasons unrelated to police business; and  he  made  negative  comments  to  her  regarding  her work and her marriage." Appellants' Br. at 29 (citations omitted).

We are not persuaded that these alleged actions, even when taken together, rose to the level of conduct affect- ing Robinson's "compensation, terms, conditions, or priv- ileges" of employment. Formal reprimands that result in a notation in an employee's personnel file could be suf- ficiently concrete, but harsh words that lack real conse- quences are not. See Meritor, 477 U.S. at 67.

We  reach  a  different  conclusion  with  respect  to Robinson's allegation that Dickerson blocked her transfer to the detective bureau because she refused to accede to his   **27    advances.  The  record  before  us  would cer-

120 F.3d 1286, *1298; 1997 U.S. App. LEXIS 17800, **27;

74 Fair Empl. Prac. Cas. (BNA) 359; 71 Empl. Prac. Dec. (CCH) P44,983

Page 8

tainly permit the conclusion that Robinson was denied a transfer to the detective bureau (which would have been a promotion) because she had performed unsatisfactorily in two undercover assignments, because she was unable to  accept  criticism  or  take  direction,  or  for  other  valid work-related reasons. However, we believe that the record would also support a finding that Dickerson refused to rec- ommend her transfer because she rebuffed his advances. It is undisputed that a supervisor's recommendation weighs very heavily in determining who is transferred, so the jury could  conclude  that  Dickerson's  refusal  to  recommend Robinson cost her the transfer. Accordingly, the evidence was sufficient to support a finding of quid pro quo harass- ment within the meaning of 29 C.F.R. § 1604.11(a)(2). n12

n12  Robinson  has  not  called  to  our  attention any admissible evidence that Dickerson explicitly threatened her before or at the time he made a sexual advance that her response would affect her "com- pensation, terms, conditions, or privileges" of em- ployment. See 29 C.F.R. § 1604.11(a)(1). In light of our conclusion that the evidence is sufficient to show that Dickerson in fact did use Robinson's re- sponse  to  his  advances  as  a  basis  for  a  decision affecting her compensation, etc. within the mean- ing of subsection (2), we need not consider whether the evidence would support a finding that Dickerson imposed such a condition "implicitly" before or at the time he made the alleged advances within the meaning of subsection (1). On remand, the district court should decide whether Robinson can proceed to trial based only on the theory of quid pro quo harassment set out in 29 C.F.R. § 1604.11(a)(2) or whether she can rely on 29 C.F.R. § 1604.11(a)(1) as well.

**28

Robinson testified that Dickerson told her on several occasions that he would recommend her for transfer to the detective bureau (App. 111, 113-14, 121-22, 142, 160-

61), but that after a party at which Dickerson touched her leg under the table and pulled her into a compromising position for a photograph, he responded to her renewed inquiry about the transfer by telling her that "he had talked to the Chief and he had talked to other detectives, and they had all said I had a bad attitude," implying that this was the reason she had not been transferred. (App. 143) She also  testified  that,  when  she  spoke  to  Edwards  shortly thereafter, he confirmed that Dickerson had "been saying bad things about her  lately to Buford and him ." (App.

145) When she asked Edwards how she should deal with that and told him that "none of it what Dickerson had

been saying  was true," he replied, "I know. I know Jim is like that. . . . Jimmy thinks he's a lover." (App. 146) Moreover, when Robinson asked Edwards why he thought Dickerson was saying bad things about her, Edwards said that "Dickerson would like to have nothing better than a

23-year--old girl like you." (App. 146) Robinson testified that,   **29   after Dickerson told her again in April 1993 that she would be transferred,  Edwards "told her  that he didn't  know why Commander Dickerson said he was going to recommend her , because he Dickerson  made sure that she  wasn't on that March 1993 transfer  list."

(App. 162)

*1299    We hold that this evidence is sufficient to entitle a reasonable factfinder to conclude that Robinson was denied a transfer to the detective bureau because she refused  Dickerson's  advances.  We  believe  that,  in  con- trast to minor slights like "negative comments," receiving or being denied a desired promotion is sufficiently seri- ous and tangible to constitute a change in the employee's

"terms, conditions, or privileges" of employment. n13 If the jury finds that Robinson was subjected to unwelcome sexual advances and that her response to those advances was the basis for Dickerson's refusal to recommend her for such a transfer, Robinson will have proved that the City, through Dickerson, discriminated against her because of her sex with respect to the "compensation,  terms,  con- ditions, or privileges" of her employment.   42 U.S.C. §

2000e-2(a)(1). Accordingly, we reverse the district court's grant of judgment **30   as a matter of law to the City on Robinson's claim under Title VII for quid pro quo sexual harassment. n14

n13 Here, although the transfer at issue would have been a promotion, Robinson has not directed us to any specific evidence that the transfer would have increased her compensation. Paragraph 43 of her complaint does allege that a "transfer to the po- sition of detective from the position of patrolman

. . . is a promotion and carries with it an increase in annual compensation . . . ." (App. 27) Moreover, there  appears  to  have  been  a  stipulation  between the parties with respect to the difference in pay be- tween the detective level and the patrolman level.

(App. 1310)

n14 The jury returned a verdict for Dickerson on Robinson's claim under § 1983 against Dickerson for discriminating against her because of her sex, in violation of the Equal Protection Clause. Since this claim was allowed to go the jury after the court granted judgment as a matter of law on Robinson's quid  pro  quo  and  retaliation  theories,  it  would appear  that  this  claim  was  founded  upon  a  hos- tile  work  environment  theory.  It  is  unclear  from

120 F.3d 1286, *1299; 1997 U.S. App. LEXIS 17800, **30;

74 Fair Empl. Prac. Cas. (BNA) 359; 71 Empl. Prac. Dec. (CCH) P44,983

Page 9

the record before us whether this claim was also founded  upon  a  theory  of  quid  pro  quo  harass- ment. If it was, our discussion in this section ap- plies equally to it, and it should be tried on remand along with Robinson's Title VII quid pro quo claim against the City. (Unlike with respect to the § 1983 claims against Buford, Edwards, and the City, there is no legal issue regarding Dickerson's personal li- ability under § 1983.) We of course recognize that federal  pleading  rules are  liberal,  but it could  be unfair  for  Robinson  to  assert  a  claim  on  remand that she did not make clear in the earlier proceed- ings in the district court. Compare Appellants' Br. at 2, 4, 28 (referring to a claim under § 1983 for quid pro quo harassment, though apparently only against the City) with Appellees' Br. at 22 (noting Robinson's references to a purported § 1983 claim for quid pro quo  harassment,  but stating  that the district  court  "analyzed  Robinson's  quid  pro  quo claim under a strict Title VII analysis"). We leave it to the district court to determine whether on re- mand  Robinson  should  be  permitted  to  pursue  a claim  against  Dickerson  under  §  1983  on  a  quid pro quo theory.

**31  V.

Title VII and § 1983 Retaliation Claims Against the City, Buford, and Edwards

Robinson contends that, after she filed her complaint with the EEOC, she suffered reprisals at work. Section

704(a)  of  Title  VII,  42  U.S.C.  §  2000e-3(a),  makes  it

"an  unlawful  employment  practice"  for  "an  employer" to "discriminate" against an employee "because he the employee  has made a charge, testified, assisted, or par- ticipated in any manner in an investigation, proceeding, or hearing under Title VII ." Robinson sued the City for retaliation under the above-quoted provision of Title VII. She also sued Buford and Edwards for retaliation under

§ 1983, apparently for violating her right, secured by the same provision of Title VII, to protest discrimination.

In  Nelson  v.  Upsala  College,  51  F.3d  383  (3d  Cir.

1995), we set forth the elements of a retaliation claim: To establish discriminatory retaliation under Title VII, a plaintiff must demonstrate that:

(1) she engaged in activity protected by Title VII; (2) the employer took an adverse em- ployment  action  against  her;  and  (3)  there was a causal connection between her partici- pation in the protected activity and the **32

adverse employment action.

Id. at 386 (citations omitted). See also Woodson v. Scott Paper Co.,  109 F.3d 913,  920 (3d Cir. 1997); Kachmar v. SunGard Data Systems,  Inc.,  109 F.3d 173,  177 (3d Cir. 1997); Aman v. Cort Furniture Rental Corp., 85 F.3d

1074, 1085 (3d Cir. 1996); Jalil v. Avdel Corp., 873 F.2d

701, 708 (3d Cir.   *1300    1989)(same);  Delli Santi v. CNA Ins. Co.,  88 F.3d 192,  198 (3d Cir. 1996) (same, under New Jersey law).

It is undisputed that Robinson's EEOC complaint con- stitutes  protected  activity  under  Title  VII.  The  district court granted judgment as a matter of law to defendants on Robinson's retaliation claims on the ground that she had not presented evidence that the alleged reprisals were the result of the protected activity. (App. 1029) On appeal, Robinson argues that the court erred in evaluating her ev- idence of retaliation. She submits that she was subjected to the following acts of reprisal due to the filing of her EEOC complaint:

restricted job duties, reassignment and sub- sequent failure to transfer her out of an as- signment in which she was under the direct command of the alleged harasser, and the is- suance of several unsubstantiated **33  oral reprimands against her. Additionally, she tes- tified that after refuting one of his advances, Dickerson sometimes would not talk to her, or would make unnecessary derogatory com- ments to her. . . Moreover, she testified that

"Chief Edwards told me that he didn't know why Commander Dickerson said he was go- ing to recommend me, because he made sure that wasn't on that transfer  list."

Appellants' Br. at 27 (citations omitted).

A. In our view, much of the allegedly retaliatory con- duct of which Robinson complains, even if her evidence is believed, does not give rise to a claim for retaliation. The alleged "unsubstantiated oral reprimands" and "un- necessary  derogatory comments"  suffered  by  Robinson following her complaint do not rise to the level of what our cases have described as "adverse employment action." Title VII declares that "it shall be an unlawful employ- ment practice for an employer to discriminate" against an employee "because he has made a charge" of discrimina- tion.  42 U.S.C. § 2000e-3(a). Title 42 U.S.C. § 2000e-

2(a) makes it an "unlawful employment practice"

120 F.3d 1286, *1300; 1997 U.S. App. LEXIS 17800, **33;

74 Fair Empl. Prac. Cas. (BNA) 359; 71 Empl. Prac. Dec. (CCH) P44,983

Page 10

to fail or refuse to hire or to discharge any in- dividual, or otherwise to discriminate **34  against  any  individual  with  respect  to  his compensation,  terms,  conditions,  or  privi- leges  of  employment,  because  of  such  in- dividual's . . . sex . . . or to limit, segregate, or  classify  his  employees  .  .  .  in  any  way which would deprive or tend to deprive any individual  of  employment  opportunities  or otherwise  adversely  affect  his  status  as  an employee, because of such individual's . . . sex . . . .

Retaliatory conduct other than discharge or refusal to re- hire is thus proscribed by Title VII only if it alters the em- ployee's "compensation, terms, conditions, or privileges of employment," deprives him or her of "employment op- portunities,"  or  "adversely  affects  his   or  her   status  as an employee." It follows that "not everything that makes an employee unhappy" qualifies as retaliation, for "oth- erwise,  minor and even trivial employment actions that

'an irritable, chip-on--the-shoulder employee did not like would form the basis of a discrimination suit.' " Smart v. Ball State University,  89 F.3d 437,  441 (7th Cir. 1996)

(quoting Williams v. Bristol-Myers Squibb Co., 85 F.3d

270, 274 (7th Cir. 1996)).

Courts have operationalized the principle that retalia- tory conduct **35   must be serious and tangible enough to alter an employee's compensation, terms, conditions, or  privileges  of  employment  into  the  doctrinal  require- ment that the alleged retaliation constitute "adverse em- ployment  action."  See  Williams,  85  F.3d  at  273  (inter- preting parallel provisions of the Age Discrimination in Employment Act to require "materially adverse action"); McDonnell v. Cisneros, 84 F.3d 256, 258 (7th Cir. 1996)

("The  language  of  'materially  adverse  employment  ac- tion'  that  some  courts  employ  in  retaliation  cases  is  a paraphrase  of  Title  VII's  basic  prohibition  against  em- ployment discrimination, found in 42 U.S.C. §§ 2000e-

2(a)(1) and (2)."). Accordingly, just as we concluded that a  quid  pro  quo  plaintiff  must  show  a  "quo"  that  is  se- rious  enough  to  alter  his  or  her  "compensation,  terms, conditions,  or privileges" of employment,  we hold that the "adverse employment action" element of a retaliation plaintiff's prima facie case incorporates the same require- ment that the retaliatory conduct rise to the   *1301   level of a violation of 42 U.S.C. § 2000e-2(a)(1) or (2). n15

n15 In Nelson v. Upsala College, 51 F.3d 383

(3d Cir. 1995), the plaintiff, a former employee of Upsala, contended that Upsala retaliated against her by requiring that she obtain prior approval before

going onto Upsala's campus. We observed that 42

U.S.C. § 2000e-3(a) "interdicts 'an unlawful em- ployment practice' rather than conduct in general which  the  former  employee  finds  objectionable," id.  at  388,  and  rejected  the  plaintiff's  argument on the ground that the allegedly retaliatory action

"had  no  impact  on  any  employment  relationship that Nelson had, or might have in the future." Id. at 389. In Charlton v. Paramus Bd. of Education,

25  F.3d  194  (3d  Cir.  1994),  we  held  that  a  for- mer  employee  could  state  a  claim  for  retaliation arising out of post-employment conduct,  so long as the retaliation affected the plaintiff's future em- ployment opportunities.   Id. at 200-01. We noted that retaliation claims have been permitted "where the retaliation results in discharge from a later job, a refusal to hire the plaintiff, or other professional or occupational harm." Id. at 200.

Although the instant case does not require us to resolve the issue, it appears from our decisions in Nelson and Charlton that a plaintiff who claims that  the  alleged  retaliation  prejudiced  his  or  her ability to obtain or keep future employment would meet  the  standard  we  announce  today  by  show- ing that the retaliatory conduct was related to his or her future employment and was serious enough to  materially  alter  his  or  her  future  employment prospects  or  conditions.  See,  e.g.,  Smith  v.  St. Louis  University,  109  F.3d  1261,  1266  (8th  Cir.

1997)  (negative  references  causing  potential  em- ployers to decline to hire plaintiff constitute action- able  retaliation);  Ruedlinger  v.  Jarrett  ,  106  F.3d

212, 214 (7th Cir. 1997) (providing information to subsequent employer that caused it to fire plaintiff constitutes retaliation that "impinges on her 'future employment prospects or otherwise has a nexus to employment'") (quoting Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 891 (7th Cir. 1996)); Passer v. American Chemical Society, 290 U.S. App. D.C.

156,  935  F.2d  322,  331  (D.C.  Cir.  1991)  (under parallel provision of the ADEA, holding that defen- dant's retaliatory cancellation of a seminar planned in honor of plaintiff gave rise to retaliation claim because the cancellation humiliated plaintiff in the eyes of his peers "and made it more difficult for him to procure future employment"); Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1532 (11th Cir.

1990) (retaliation claim proper where plaintiff's for- mer employer persuaded plaintiff's new employer to fire him).

**36

We hold that Robinson's allegations that she was sub-

120 F.3d 1286, *1301; 1997 U.S. App. LEXIS 17800, **36;

74 Fair Empl. Prac. Cas. (BNA) 359; 71 Empl. Prac. Dec. (CCH) P44,983

Page 11

jected to "unsubstantiated oral reprimands" and "unnec- essary  derogatory  comments"  following  her  complaint do not rise to the level of the "adverse employment ac- tion" required for a retaliation claim. See Wanamaker v. Columbian Rope Co., 108 F.3d 462, 465-66 (2d Cir. 1997)

("barring a terminated employee from using an office and phone to conduct a job hunt presents only a minor, min- isterial stumbling block toward securing future employ- ment" and thus did not constitute adverse employment ac- tion under parallel provisions of the ADEA); Veprinsky,

87 F.3d at 895 (former employer's subsidizing of attorney for an individual sued by plaintiff was "entirely unrelated to employment" and resulted in "too intangible" adver- sity to plaintiff and thus could not give rise to a retaliation claim); Williams, 85 F.3d at 274 (lateral transfer involving small indirect effect on employee's earnings from com- missions "cannot rise to the level of a materially adverse employment action"). See also McDonnell, 84 F.3d at 258

(implying in dicta that "anger, irritation, dirty looks, even the silent treatment can cause distress" but do not con- stitute   **37    materially  adverse  employment  action); Harley v. McCoach, 928 F. Supp. 533, 541-42 (E.D. Pa.

1996).

B. In addition, much of what Robinson characterizes as retaliation for her EEOC complaint is in fact alleged to  have  occurred  before  she  filed  the  complaint.  What Dickerson may have done after Robinson "refuted one of his advances" might constitute evidence of a hostile work environment or of quid pro quo harassment, but since it happened before Robinson filed her complaint, Robinson cannot establish a causal connection between her com- plaint and the conduct. What remains of Robinson's ev- idence  is  essentially  as  follows:   (1)  that  a  co-worker named Mona Wallace retaliated against Robinson by re- stricting her computer access during the summer of 1994 to weekdays, in contrast to Robinson's previously unre- stricted access; and (2) that the "ten-car memo" written by Edwards and sent to Bochter, Dickerson, and Buford was a retaliatory attempt to force Robinson to return to working under the direct supervision of Dickerson,  her alleged harasser. Assuming arguendo that Wallace's con- duct  and  Edwards's  memo  constitute  "adverse  employ- ment action," we do not believe that Robinson demon- strated   **38    the  required  "causal  link"  between  her complaint                *1302     and  either  Wallace's  conduct  or Edwards's memo. Santi, 88 F.3d at 198.

Robinson testified that one Saturday during the sum- mer  of  1994,  she  attempted  to  work  on  her  computer but  was unable  to  do  so  because  her  authorization  had been restricted to weekdays. (App. 240) Before that time, Robinson  had  had  unrestricted  computer  access.  (App.

240) Wallace, who was a co-worker of Robinson's, is not implicated in any way in any of the alleged sexual harass-

ment. Robinson points to no evidence that anyone other than Wallace was involved in the decision to restrict her computer access, and she offers no evidence of any sort to  show  that  Wallace  took  this  action  in  retaliation  for Robinson's complaint. On the contrary, Robinson relies merely on a post hoc, ergo propter hoc inference from the fact that the restriction was imposed after Robinsonfiled her complaint.

Our cases are seemingly split on the question whether the  timing  of  the  allegedly  retaliatory  conduct  can,  by itself,  support  a  finding  of  causation.  Compare  Jalil  v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (plaintiff

"demonstrated  the  causal  link  .  .  . by  the  circumstance

**39   that the discharge followed rapidly, only two days later, upon Avdel's receipt of notice of his  EEOC claim") with Delli Santi v. CNA Ins. Co., 88 F.3d 192, 199 n.10

(3d  Cir.  1996)  ("timing  alone  will  not  suffice  to  prove retaliatory motive"). In Woodson v. Scott Paper Co., 109

F.3d 913, 920 (3d Cir. 1997), relying on Jalil, we stated in dicta that "temporal proximity between the protected ac- tivity and the termination is sufficient to establish a causal link." On the other hand, in Quiroga v. Hasbro, Inc., 934

F.2d 497 (3d Cir. 1991), we characterized our statement in Jalil that the "timing of the discharge in relation to Jalil's EEOC  complaint  may  suggest  discriminatory  motives" as the holding of that case,  and stated that in Jalil "we stopped short of creating an inference based upon timing alone." Id. at 501 (emphasis added).

We believe that, if Jalil is to be interpreted as holding that timing alone can be sufficient, that holding must be confined to the unusually suggestive facts of Jalil. Thus, even if timing alone can prove causation where the dis- charge follows only two days after the complaint, the mere fact that adverse employment **40   action occurs after a complaint will ordinarily be insufficient to satisfy the plaintiff's burden of demonstrating a causal link between the  two events.  See  Quiroga,  934  F.2d  at  501  (holding that, "as a matter of fact," the timing of Quiroga's alleged constructive discharge was not independently sufficient to prove it was caused by his complaint). There is no ev- idence that Wallace's restriction of Robinson's computer access followed immediately upon her complaint, so this is thus not one of the extraordinary cases where the plain- tiff can demonstrate causation simply by pointing to the timing of the allegedly retaliatory action. Accordingly, we reject Robinson's claim that Wallace's action constituted unlawful retaliation. n16

n16 Because Robinson has failed to present evi- dence of a causal connection between her complaint and Wallace's conduct, Robinson has not made out a prima facie case that Wallace's conduct consti- tuted retaliation. See, e.g., Aman, 85 F.3d at 1085.

120 F.3d 1286, *1302; 1997 U.S. App. LEXIS 17800, **40;

74 Fair Empl. Prac. Cas. (BNA) 359; 71 Empl. Prac. Dec. (CCH) P44,983

Page 12

Defendants therefore were not required to proffer a legitimate, non-discriminatory reason for Wallace's conduct. However, they did so, presenting evidence that Wallace restricted Robinson's access because Robinson had been committing security breaches

(for  example,  by  bringing  files  home)  and  that

Wallace took this action entirely on her own. (App.

562-66, 579) If defendants were obligated to prof- fer such an explanation, Robinson would then have the  burden  of  presenting  evidence  from  which  a reasonable jury could conclude either that "the ar- ticulated reason is a pretext for the retaliation or that a discriminatory reason more likely motivated the employer." Delli Santi,  88 F.3d at 199. Robinson has  not  pointed  to  any  implausibilities,  inconsis- tencies,  contradictions,  incoherencies,  or  the like in Wallace's testimony,  see Sheridan,  100 F.3d at

1072, and has not even attempted to explain why the  jury  should  disbelieve  Wallace.  Nor  does  the record itself suggest any such reason. Rather than showing that Wallace was in league with Dickerson or management generally, the record in fact reveals that Wallace accompanied Robinson to the EEOC as "moral support" when Robinson filed her com- plaint.  (App.  560)  We  therefore  hold,  in  the  al- ternative, that Robinson failed to present evidence undermining defendants' proffered legitimate, non- discriminatory explanation for the challenged con- duct.

**41

A similar analysis applies to the "ten-car memo" writ- ten by Edwards in June   *1303   1994. Before that time, Robinson had been assigned to the "ten-car" (a drug sup- pression vehicle) but had been detailed to criminal intel- ligence where she worked under Bochter. Dickerson was in charge of the ten-car but had no supervisory author- ity over the criminal intelligence unit. The ten-car memo states that "due to the increased activity in the downtown area and with the ending of the school year, the need for the extra assistance that the ten car provides has increased. Due to these facts, effective immediately, all personnel as- signed to a ten car is sic  to be immediately informed that they will ride the vehicle that they are assigned to." (App.

237)

Robinson  seeks  to  portray  this  memo  as  a  pretex- tual  attempt  to  force  her  to  work  under  Dickerson  af- ter having filed a complaint against him. However, it is undisputed that the memo was not applied to Robinson; she remained in the criminal intelligence unit from June

1994 (when the memo was circulated) until October 1994, when she stopped reporting for work. (App. 239-40, 249-

50) Again, Robinson attempts to link the ten-car memo to

her complaint simply **42   by pointing to the temporal sequence of the two events,  but in light of the circum- stances noted above, this is insufficient. There is conse- quently no basis for a finding that the ten-car memo con- stituted retaliation against Robinson for her complaint of discrimination. Robinson's final argument is that the jury would have been entitled to return a verdict for her on her retaliation claim if it had agreed that she was subjected to a hostile work environment. She relies on our statement in Aman that "an atmosphere of condoned sexual harass- ment in the workplace increases the likelihood of retalia- tion for complaints in individual cases," 85 F.3d at 1086, but that statement is merely an empirical prediction; it is not a legal theory that obviates the presentation of actual evidence of retaliation. In Hawkins v. Hennepin Technical Center, 900 F.2d 153, 156 (8th Cir. 1990), the source of the cited statement from Aman,  the court held that the plaintiff should have been allowed to present evidence of the defendant's prior acts of sexual harassment,  even if those acts were not independently actionable, in order to cast doubt upon the credibility of the defendant's prof- fered legitimate,   **43   non-discriminatory explanation for the allegedly retaliatory conduct.   Id. at 155-56. In Hawkins, the plaintiff had enough evidence of retaliation to get to the jury even without the evidence of "condoned sexual harassment," so the court's decision cannot be read as upholding the argument that Robinson urges upon us here. n17

n17 In Glass v. Philadelphia Elec. Co., 34 F.3d

188,  195  (3d  Cir.  1994),  we  quoted  the  Eighth Circuit's  statement  in  Hawkins  with  approval  in support of the proposition that evidence that Glass had been subjected to racial harassment during a time period for which he received an unfavorable performance rating was relevant to show that that rating was of questionable validity and thus that the employer's reliance on that rating in denying Glass certain promotions was pretextual. Therefore, like Hawkins itself,  Glass   does not support the view that  evidence  that  the  employer condoned  sexual harassment suffices to prove the element of the em- ployee's  prima  facie  case  requiring  a  causal  link between his or her complaint and a subsequent ad- verse employment action.

**44

In Woodson, we stated that evidence that the employer condoned a harasser's conduct can contribute to an infer- ence  that  subsequent  adverse  employment action  taken by the harasser against the plaintiff was causally linked to the plaintiff's complaint about the harassment. 109 F.3d at 922. This observation rests upon the recognition that,

120 F.3d 1286, *1303; 1997 U.S. App. LEXIS 17800, **44;

74 Fair Empl. Prac. Cas. (BNA) 359; 71 Empl. Prac. Dec. (CCH) P44,983

Page 13

if the harasser got away with the harassment, it is more likely that he or she will believe that retaliation will be safe as well, and conversely, if the employer took prompt and adequate action against the harasser, the harasser will be less confident of his or her ability to engage in retalia- tion with impunity. In this case, however, Robinson does not contend that Dickerson -- the alleged harasser--took any retaliatory action against her.

In any event, we made it clear in Woodson that this sort of evidence was not independently sufficient to sup- port an inference of causation. See id. at 921. Whereas Woodson presented other extensive evidence, Robinson seeks to rely solely on evidence that Dickerson subjected her to a hostile work environment and that the City failed to take prompt and adequate action to remedy the harass- ment. If we **45   were to uphold Robinson's argument, every employee who succeeds on a hostile environment claim would be able to prove a causal link between his or her complaint of harassment and any subsequent adverse employment action. We do not believe that actual proof of retaliatory motive can be dispensed with so easily. In light of the foregoing, we affirm the district court's grant of judgment as a   *1304   matter of law to defendants on Robinson's Title VII and § 1983 retaliation claims. n18

n18 In addition to the grounds described in the text, which apply equally to Robinson's Title VII retaliation claim and her § 1983 retaliation claim, we hold that judgment as a matter of law was prop- erly  granted  in  favor  of  Edwards  and  Buford  on Robinson's § 1983 retaliation claim on the ground that neither Edwards nor Buford was personally in- volved in any retaliation. See Part III, supra. We also affirm the grant of judgment as a matter of law to the City on the § 1983 retaliation claim on the additional ground that there was no evidence of a municipal policy or custom encouraging or permit- ting retaliation. See Part III.C, supra.

**46  VI.

Jury Instruction on Employer Liability The district court denied the City's motion for judgment as a matter of law as to Robinson's claim under Title VII for a hostile work environment, and the jury returned a verdict for the City. Robinson contends that this verdict must be upset because the court erred in its instruction to the jury on the issue of employer respondeat superior liability under Title VII for hostile environment sexual harassment. n19 As we noted in Bouton v. BMW of N. Am., Inc., 29 F.3d 103 (3d Cir.

1994), the Supreme Court "has instructed courts to use agency  principles  when  deciding  employer liability  for

sexually  hostile  work  environments."  Id.  at  106  (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986)). We explained that:

The Restatement (Second) of Agency § 219 provides  three  potential  bases  for  holding employers liable for sexual harassment per- petrated by their employees.  Section 219(1) holds employers responsible for torts com- mitted by their employees within the scope of their employment. . . . In addition,  un- der § 219(2)(b), masters are liable for their own negligence or recklessness; in a harass- ment **47   case, this is typically negligent failure to discipline or fire, or failure to take remedial action upon notice of harassment. Finally, under § 219(2)(d), if the servant re- lied  upon  apparent  authority  or  was  aided by the agency relationship, the master is re- quired to answer.

Id. In the instant case, Robinson contended that the City should be held liable for Dickerson's alleged harassment on the theory that the City had notice of the harassment yet failed to take remedial action to put a stop to it. See Knabe v. The Boury Corp., 114 F.3d 407, 411, 1997 U.S. App. LEXIS 12455, 1997 WL 282905, *4 (3d Cir.) (same).

n19 In order to prevail on a claim under Title VII for a hostile work environment based on sex, an employee must prove that:  "(1) he or she suffered intentional discrimination because of his or her sex;

(2) the discrimination was pervasive and regular;

(3)  the  discrimination  detrimentally  affected  the plaintiff;  (4)  the  discrimination  would  detrimen- tally affect a reasonable person of the same sex in that  position;  and  (5)  respondeat  superior  liabil- ity existed." Knabe v. The Boury Corp., 114 F.3d

407, 410, 1997 U.S. App. LEXIS 12455, 1997 WL

282905, *3 (3d Cir.)(citing Andrews, 895 F.2d at

1482).  It  is  undisputed  on  appeal  that  Robinson presented sufficient evidence of all five elements to create a jury question.

**48

The court charged the jury as follows:

To  prove  the  fifth  element   respondeat  su- perior  liability  on  the  part  of  the  City , wife-plaintiff  must  prove  that  the  City  of Pittsburgh was negligent insofar as its pro-

120 F.3d 1286, *1304; 1997 U.S. App. LEXIS 17800, **48;

74 Fair Empl. Prac. Cas. (BNA) 359; 71 Empl. Prac. Dec. (CCH) P44,983

Page 14

cedure for handling sexual harassment com- plaints was not effective. It is important for you, the jury, to understand that the City of Pittsburgh  may  only  be  held  liable  for  the existence of a sexually hostile working envi- ronment that results from its own negligence. The City may not be held liable simply be- cause one of its employees engaged in sexual harassment.

Thus, if the City of Pittsburgh had an effec- tive  procedure  for  handling  sexual  harass- ment  complaints  at  the  time  of  the  alleged incidents, the City was not negligent and it cannot be held liable for the improper con- duct of its employees.

In  order  to  determine  whether  the  City  of Pittsburgh  was  negligent  in  this  case,  you must  decide  whether  its  sexual  harassment procedure  was  effective.  A  sexual  harass- ment procedure is effective if it is both known to  the  victim  of  sexual  harassment  and  its

sic   use  of  the  procedure  timely  stops  the harassment.

(App. 1331-32). Robinson timely objected **49   to this charge (App. 1310-11, 1314-15), arguing *1305  that "I think we've shown evidence where there was not an effec- tive procedure.. . . Under the facts of this case you can't presume  there  was  an  effective  procedure,  because  the procedure required Chief Edwards to take action, and he didn't." The court responded that it was not, in fact, "pre- suming" that the City had an effective anti-harassment procedure,  and  stated  that  "it's  the  jury's  job  to  decide whether it was effective or not." (App. 1311) We exercise plenary review over the jury instructions in order to de- termine whether, read as a whole, they stated the correct legal standard.  Miller v. CIGNA Corp., 47 F.3d 586, 591

(3d Cir. 1995) (en banc).

In Bouton, the case upon which the district court re- lied  in  its  jury  charge,  we  held  that  "under  negligence principles, prompt and effective action by the employer will relieve it of liability." Bouton, 29 F.3d at 107 (em- phasis  added).  Robinson  argues  that  the  charge  based on  Bouton  was  inappropriate  because  the  complaint  in that  case  did  end  the  harassment,  while  her  complaint did not. According to Robinson,  the court should have based  its  jury  instruction  on  Andrews,   **50    a  case where the complaint did not put a stop to the harassment. Robinson's argument is nothing more than a contention that the City's action in this case was not "effective." But whether Robinson's complaint put a stop to the harass-

ment -- and whether any harassment occurred in the first place --  were factual issues committed to the jury. The basic problem with Robinson's argument is that it chal- lenges the jury's verdict, not the court's charge. Robinson contends that, even if the City put an end to the harass- ment by transferring Dickerson following her May 1994 complaint, the City should have taken such action in 1992 when she first spoke to Edwards about Dickerson's "hit- ting on her." But Robinson argued at trial that her 1992 conversation with Edwards constituted an attempt to avail herself of the City's anti-harassment procedure, and that the City failed to respond adequately to her complaint.

(App. 1405) If the jury had believed that the 1992 con- versation had taken place and that Robinson had made it sufficiently clear to Edwards that she was complaining about conduct that she perceived as sexual harassment, the jury could have held the City liable. That it did not do so is not **51   a basis to attack the charge.

Robinson's argument, both as quoted above in her ob- jection to the charge in the district court and on appeal, runs  more  like  an  argument  in  favor  of  judgment  as  a matter of law that the City did not take adequate remedial action once it learned of the harassment than a challenge to a jury instruction. Robinson did not move for such a judgment, however, and it is plain that no such judgment would  have  been  warranted  in  view  of  the  evidentiary disputes regarding whether the harassment occurred and when the City found out about it. As the district court put it, "it's the jury's job to decide whether the City's anti- harassment procedure  was effective or not." We reject Robinson's  argument  that  the  Bouton  charge was  inap- propriate on the facts of her case, because it was for the jury in its verdict, not the court in its charge, to decide what the facts of this case were. n20

n20  After  the  trial  in  this  case,  we  decided

Knabe  v.  The  Boury  Corp.,  114  F.3d  407,  1997

U.S.  App.  LEXIS  12455,  1997  Wl  282905  (3d Cir.). As noted above, in Bouton we articulated the standard as whether the employer's remedial action was "effective." See 29 F.3d at 107. In Andrews, we phrased the standard somewhat differently, stating that the employer will be liable if its remedial ac- tion was not "adequate." See 895 F.2d at 1486. If there was any conflict between the "adequacy" stan- dard expressed in Andrews and the "effectiveness" standard set forth in Bouton,  Knabe has resolved it. In Knabe,  we rejected the plaintiff's argument that an employer is liable unless it took remedial action that was actually "effective" to put a stop to the harassment in the particular case at hand. We held  instead  that  a  remedial  action  is  "adequate" if it was "reasonably calculated to prevent further

120 F.3d 1286, *1305; 1997 U.S. App. LEXIS 17800, **51;

74 Fair Empl. Prac. Cas. (BNA) 359; 71 Empl. Prac. Dec. (CCH) P44,983

Page 15

harassment," whether or not it actually succeeded in doing so.  114 F.3d at 412, *5 (citations omitted). See also id. at 412, *4 n.8. Therefore, the charge in this case arguably misled the jury into believing that the City's response had to be actually effective. Of course, in view of the jury's verdict for the City, no prejudice flowed from this possible error.

**52  VII.

After the district court granted defendants' motion for judgment as a matter of law on Robinson's quid pro quo harassment  and  retaliation  claims,  defendants'  counsel

*1306  asked the court to remove from the record certain exhibits that "were offered with relation to those claims."

(App. 1307). The court then went through the exhibits in question with counsel and excluded all but two of them.

(App. 1308-13) Later, in charging the jury, the court listed the claims that it had "disposed of" and told the jury that

"these claims are of no concern to you. The evidence you heard concerning these claims is no longer relevant and should not be considered by you." (App. 1326) On ap- peal, Robinson argues that these evidentiary rulings and this statement were erroneous because evidence of quid pro quo harassment and retaliation, even if it does not con- cern conduct that is serious enough to be independently actionable on a quid pro quo or a retaliation theory, may nevertheless be relevant to show a hostile work environ- ment. These errors, she submits, require reversal of the jury's verdict in favor of the City on her Title VII hostile environment claim.

We need not consider this argument, because **53  we do not believe that Robinson raised it in the district court. Fed. R. Civ. P. 46 requires "that a party, at the time the ruling or order of the court is made or sought, make  known to the court the action which the party desires the court to take or the party's objection to the action of the court and the grounds therefor." We conclude that, while Robinson may have made a timely objection to the evi- dentiary exclusions that she contests, she at no time made known to the district court the ground that she now presses in this court.

As noted, the court analyzed each exhibit that defen- dants sought to exclude. For most of the exhibits men- tioned during that process, plaintiffs' counsel voiced no objection, and neither of the two objections that he did raise related to the argument described above upon which Robinson now relies. First, plaintiffs' counsel objected to the  exclusion  of  exhibit  57-X,  arguing  that  it  was  rel- evant  to  undermine  the  credibility  of  a  witness  named Gail Payne by showing "her motive in giving testimony the  way  she  did  and  what  she  said."  (App.  1308)  The

court disagreed, and removed the exhibit from the record. Next, counsel argued that exhibit 78 was relevant **54  to show that the City's response to Robinson's complaint of  harassment  was  ineffective.  (App.  1310)  The  court disagreed,  stating that the exhibit only "has to do with retaliation." (App. 1311) Robinson does not renew either of these objections on appeal. After the court and counsel had gone through all of the exhibits at issue,  plaintiffs' counsel stated that "to make the record clear, Your Honor, I would just like to for the record, to formally object to the Court's ruling based on the Bouton case and the eviden- tiary rulings you just made." (App. 1315) Counsel offered no further explanation of the grounds for this objection. Subsequently, in charging the jury, the court made the statement  quoted  above  that  Robinson  now  challenges. After completing the jury charge, the court told counsel at sidebar that "now is your opportunity to put exceptions to the charge on record." (App. 1348) Plaintiffs' counsel did  not  mention  the  challenged  statement,  and  did  not otherwise make known the argument that Robinson now

makes on appeal.

We therefore conclude that plaintiffs' counsel never gave the district court any reason to believe that he was making  the  argument  that  evidence  of  quid  pro   **55  quo harassment and retaliation, even if not actionable on those theories, was nevertheless relevant to show a hostile work environment. Because Robinson did not raise that argument in the district court, we decline to consider it on appeal. n21

n21 Robinson argues that the court erred in re- fusing to allow her to present evidence that the City transferred officers to the detective bureau on the basis  of  nepotism  and  favoritism,  in  violation  of its written policies. We find no error in the district court's ruling that the proffered evidence could not give rise to a reasonable inference of discrimina- tion because of sex. Finally, Robinson challenges the court's refusal to admit the report prepared by the City's Office of Professional Responsibility that found that Dickerson had created an "uncomfort- able" work environment for another woman. The court allowed Robinson to elicit the report's con- clusions as admissions by the City, but excluded the report itself as irrelevant. Robinson contends that the report shows notice to the City of Dickerson's alleged harassment  of her. We find no error here as well. The conduct on the part of Dickerson dis- cussed in the report is not his alleged harassment of Robinson, so the report in no way put the City on notice that Dickerson was harassing Robinson.

**56

120 F.3d 1286, *1307; 1997 U.S. App. LEXIS 17800, **56;

74 Fair Empl. Prac. Cas. (BNA) 359; 71 Empl. Prac. Dec. (CCH) P44,983

Page 16

*1307   VIII.

For the reasons stated in this opinion, we affirm the district court's grant of defendants' motion for judgment as a matter of law with respect to Robinson's claims un- der § 1983 against Buford, Edwards, and the City for sex discrimination and retaliation and Robinson's claim un- der Title VII against the City for retaliation. We reverse the grant of judgment as a matter of law with respect to

Robinson's claim under Title VII for quid pro quo sex- ual harassment against the City and remand for trial of that claim. On remand, the district court should ascertain whether Robinson seeks to pursue a claim under § 1983 for quid pro quo harassment against Dickerson, and if so, whether she should be permitted to do so in light of the prior proceedings in this case. See n.14, supra. In all other respects, we affirm the district court's rulings and its entry of judgment upon the jury's verdict.

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