Jacqueline Young v. Temple University Hospital, An Affiliate of Temple University Health System

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4375
JACQUELINE YOUNG,
Appellant
v.
TEMPLE UNIVERSITY HOSPITAL,
AN AFFILIATE OF TEMPLE
UNIVERSITY HEALTH SYSTEM
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-08-cv-00691)
District Judge: Honorable Stewart Dalzell
Submitted Under Third Circuit LAR 34.1(a)
October 1, 2009
Before: AMBRO, GARTH, and ROTH, Circuit Judges
(Opinion filed: December 31, 2009)
OPINION
AMBRO, Circuit Judge
Jacqueline Young appeals the District Court’s grant of summary judgment in favor
of her former employer, Temple University Hospital, on her claims for hostile work

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The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have1
jurisdiction under 28 U.S.C. § 1291.
2
environment, constructive discharge, and retaliation in violation of Title VII of the Civil
Rights Act of 1964 and the Pennsylvania Human Relations Act. We affirm. 1
I.
Jacqueline Young became a Certified Occupational Therapist Assistant (at times
referred to by the acronym “COTA”) in 1983, and was hired by Temple University
Hospital as a contractor in its Occupational Therapy Department in January 2005. Two
months later, Temple hired her as a full-time, union employee. Young’s responsibilities
as a COTA included assisting therapists in the evaluation, diagnosis, and treatment of
patients.
Young’s direct supervisor was Josette Merkel, the departmental supervisor for the
Occupational Therapy Department. Young received favorable performance reviews from
Merkel in August 2005 and April 2006. During her August 2005 evaluation, Young
discussed with Merkel the possibility of being promoted to “Senior COTA,” a position
Young had held at other rehabilitation centers, in light of her many years of experience.
Temple did not have such a position. Merkel nonetheless agreed that Young would be
qualified should that position exist, and told Young she would “look into” creating it.
In addition to Occupational Therapists and Occupational Therapist Assistants, the
Hospital employs “Rehabilitation Aides” whose responsibilities include assisting with

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patient treatment, obtaining supplies, cleaning up after patient treatment sessions, and
transporting patients within the hospital. Young had several conflicts with a
Rehabilitation Aide named Roosevelt Brant, Young’s subordinate, whose conduct is the
subject of her claims.
Young frequently complained to Merkel that Brant refused to take direction from
her. For example, in August 2005 Brant refused Young’s request that he clean dishes
after a patient treatment program. Young complained about the incident to Merkel, who
orally disciplined Brant and advised him that he was required to take direction from
Occupational Therapist Assistants like Young. Nearly a year later, in July 2006, Brant
refused Young’s request to retrieve gloves from the supply room, raised his voice, and
began “screaming and spitting” in Young’s face. Young reported this incident to Merkel,
who again disciplined Brant and advised him that his responsibilities included responding
to the requests of Occupational Therapist Assistants.
Young also told Merkel that she believed Brant refused to take direction from her,
and treated her with hostility, because she was a woman. Young complained that Brant
would frequently “bump” into her and “block [her] passage . . . [by] stand[ing] in the
doorway so [Young] would have to walk around him.” Young never witnessed Brant
treat male employees in a similar manner.
In August 2006, Young met with Richard Lutman, the Hospital’s Director of
Labor Relations, to complain about Brant’s behavior. According to Young, Lutman

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4
listened to her complaints, assured her that he “would look into it,” and told her he could
not comment further because disciplinary matters were confidential. Later that month,
Temple suspended Brant for one day as a result of several incidents, including (1) his July
2006 incident with Young, (2) his poor quality of work (for example, failing promptly to
take patients’ vital signs and clean up after patient treatment sessions), and (3) leaving the
department without permission during his shift. Brant appealed his suspension, which
Temple upheld.
Brant’s behavior continued after his suspension. In late October 2006, Young
complained to Merkel that Brant had blocked her pathway—forcing her to “squeeze
thr[ough] a narrow space which made her feel uncomfortable”—and, the next day, had
bumped into her with a stretcher. Merkel promptly met individually with Young and
Brant to discuss these incidents.
Other female employees raised similar complaints about Brant. In March 2006,
Deborah Berutti—at that time a student intern in the Occupational Therapy
Department—submitted a written complaint to Merkel. Berutti stated that Brant
frequently bumped into her, and often would block the doorway to an office with his
chair, wait for Berutti to attempt to leave, and “quickly lean back, banging the chair into
[her].” Brant received a “final written warning” from Merkel as a result of his “negative
behavior” towards Berutti, which, Merkel noted, included inappropriate physical
touching.

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5
Mecca Gethers, an Occupational Therapist, worked as a student intern in the
summer of 2005 and was hired as a full-time employee in October 2006. As with Young
and Berutti, Brant would frequently bump into Gethers and block doorways when she
tried to leave. In January 2007, Gethers submitted a written complaint to Merkel. In her
complaint, Gethers stated that, on two or three occasions, Brant hit Gethers in the breast
when he bumped into her, and stated that the “situation between Roosevelt and [me] . . .
has become increasingly uncomfortable and hostile and is making it difficult to perform
my job.”
Merkel acknowledged receiving repeated complaints from Young, Berutti, and
Gethers about Brant. Merkel also acknowledged that all three expressed a belief that
Brant was mistreating them because they were women. Merkel did not see gender “as . . .
the reason for [Brant’s] behavior toward[s] them,” however, as male employees had made
similar complaints about Brant mistreating them and bumping into them. Merkel
nonetheless raised with Lutman the possibility that Brant be “moved out of [the]
department.” According to Merkel, however, Lutman decided they would continue to
pursue “progressive discipline”—as apparently provided for by Temple’s collective
bargaining agreement with Brant’s union—that ultimately could lead to Brant’s
termination.
At the end of December 2006, Young accepted an employment offer from a
previous employer at a salary of $38 per hour—$8 more than she was being paid by

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Temple. She resigned from Temple on January 26, 2007. Young told Merkel that she
was resigning because she had “been harassed [for] too long” by Brant, and that “[n]o one
was looking at the situation and [her] concerns.” Young was also disappointed that the
“Senior COTA” position had never been created, and believed that Merkel had stopped
pursuing the matter because of Young’s frequent complaints against Brant.
Brant was terminated on February 2, 2007. According to Merkel’s records, the
decision to terminate Brant was made immediately following Gethers’ January 2007
complaint. Brant appealed his termination, which was upheld in April 2007. After Brant
was terminated, Merkel unconditionally offered Young her job back. She declined the
offer.
Young filed suit in the District Court for the Eastern District of Pennsylvania,
asserting a compound hostile work environment and constructive discharge claim and a
retaliation claim under both Title VII, 42 U.S.C. § 2000e et seq., and the Pennsylvania
Human Relations Act, 43 Pa. Cons. Stat. § 951 et seq. The District Court granted
summary judgment in favor of Temple on all claims, and Young timely appealed.
II.
We review a grant of summary judgment de novo, using the same standards as the
District Court. Jakimas v. Hoffmann-LaRoche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).
We view the facts in the light most favorable to the nonmoving party. Id.; see also Erie
Telecomms. Inc. v. City of Erie, 853 F.2d 1084, 1093 (3d Cir. 1988). A party is entitled to

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“The proper analysis under Title VII and the Pennsylvania Human Relations Act is2
identical, as Pennsylvania courts have construed the protections of the two acts
interchangeably.” Weston v. Pennsylvania, 251 F.3d 420, 425 n.3 (3d Cir. 2001).
7
summary judgment only “if the pleadings, the discovery and disclosure materials on file,
and any affidavits[,] show that there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2).
III.
Young argues that the District Court erred in granting summary judgment on her
compound hostile work environment and constructive discharge claim and her retaliation
claim. We address each claim in turn.2
A. Hostile Work Environment and Constructive Discharge
To prove a prima facie case of a hostile work environment, a plaintiff must
establish five elements: (1) she suffered intentional discrimination because of her sex; (2)
the discrimination was severe or pervasive; (3) it detrimentally affected her; (4) it would
detrimentally affect a reasonable person in like circumstances; and (5) there is a basis for
employer liability. Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104
(3d Cir. 2009); Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006), abrogated on other
grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). To establish
a constructive discharge as a result of a hostile work environment, a plaintiff must further
prove that the employer “‘knowingly permitted conditions of discrimination in
employment so intolerable that a reasonable person subject to them would resign.’”

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Before the District Court, Temple argued that Young could not establish the first,3
second, or fifth elements of her prima facie case. As to the first element, the Court
reasoned that although Young “could not point to anything Brant did which overtly
related to her sex,” the fact that two other female employees also complained that Brant
was harassing them because of their gender supported an inference of discrimination. On
the second element, the Court noted that Young had testified that “problems with Brant
happened all the time,” and determined that Brant’s behavior went beyond mere offensive
utterances and “into the realm of physically threatening or humiliating.” Accordingly, the
Court found that Young had established the first two elements of her prima facie case.
8
Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1084 (3d Cir. 1996) (quoting Goss v.
Exxon Office Sys. Co., 747 F.2d 885, 888 (3d Cir. 1984)).
In the co-worker harassment context, a plaintiff may establish employer liability on
a theory of “negligent failure to discipline or fire, or failure to take remedial action upon
notice of harassment.” Knabe v. Boury Corp., 114 F.3d 407, 411 (3d Cir. 1997) (quoting
Bouton v. BMW of N. Am., Inc., 29 F.3d 103, 106 (3d Cir. 1994)). The plaintiff must
show that “management knew or should have known about the harassment, but failed to
take prompt and adequate remedial action.” Jensen, 435 F.3d at 453 (internal quotation
marks omitted). Even if not effective, an employer’s remedial action is adequate if it is
“reasonably calculated” to end the harassment. Knabe, 114 F.3d at 412–13.
We agree with the District Court that Young failed to establish a basis for
employer liability. It is undisputed that, following each complaint, Merkel promptly3
disciplined Brant for his behavior toward Young and other employees, which included
oral warnings, written warnings, a suspension, and, ultimately, termination. The only
additional remedial action that Young complains Temple failed to take was transferring

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In granting summary judgment for Temple on Young’s hostile work environment4
claim, the District Court stated that it could not “see what more Temple could have
reasonably done [to discipline Brant] without . . . running afoul of the collective
bargaining agreement.” On appeal, Young appears to argue that the District Court
erroneously determined that Temple was shielded from liability under Title VII because it
was abiding by the disciplinary process contemplated in the collective bargaining
agreement.
We do not believe the District Court intended to suggest that Temple could not be
held liable for Brant’s actions, however severe, simply because it had disciplined him in
accordance with the collective bargaining agreement. Moreover, there is no evidence that
Merkel or others felt constrained by the terms of the collective bargaining agreement from
taking remedial steps they otherwise believed were necessary. Indeed, Merkel confirmed
in her deposition testimony that she believed the collective bargaining agreement had no
effect on her responsibility and authority to investigate discrimination complaints and
impose appropriate discipline.
9
Brant out of the Occupational Therapy Department. Temple’s failure to take that step,
however, does not by itself render its remedial actions inadequate. See id. at 414 (holding
that employer’s issuing of a warning—notwithstanding the plaintiff’s belief that the
harassing employee should have been transferred—was an adequate remedial measure, as
“an employee cannot dictate that the employer select a certain remedial action”). Indeed,
rather than transferring Brant, Temple sought to take the necessary steps to terminate him,
thus completely removing him from the Hospital (and all of its female employees). We4
agree that Temple’s actions were promptly taken and “reasonably calculated” to end the
harassment.
Young emphasizes that although Merkel received complaints from several female
employees about Brant, she did not personally believe that Brant was mistreating them
because of their gender. It is also unclear from the record whether Merkel, in disciplining

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Even assuming Young had established a basis for employer liability, we would still5
affirm the District Court’s grant of summary judgment on her constructive discharge
claim because Temple did not “knowingly permit[] conditions of discrimination in
employment so intolerable that a reasonable person subject to them would resign.” Aman,
85 F.3d at 1084 (quoting Goss, 747 F.2d at 888); see also Spencer v. Wal-Mart Stores,
Inc., 469 F.3d 311, 317 n.4 (3d Cir. 2006) (a constructive discharge claim requires “a
greater severity or pervasiveness of harassment than the minimum required to prove a
hostile working environment”) (quoting Landgraf v. USI Film Prods., 968 F.2d 427, 430
(5th Cir. 1992)).
10
Brant on various occasions, discussed specifically the allegations of gender
discrimination with him (as opposed to disciplining him for specific incidents of
harassing behavior). These gaps in the record do not compel a contrary result, however.
The question is whether Temple’s remedial actions, not its investigation, were adequate.
See id. at 412 (“Even if a company’s investigation into complaints of sexual harassment is
lacking, the employer cannot be held liable for the hostile work environment created by
an employee . . . unless the remedial action taken subsequent to the investigation is also
lacking.”). Because we conclude that Temple took prompt and adequate remedial actions
to address Brant’s harassment, Young’s hostile work environment and constructive
discharge claims fail.5
B. Retaliation
To establish a prima facie claim of retaliation, a plaintiff must prove that: (1) she
engaged in protected conduct; (2) her employer took an adverse employment action
against her; and (3) a causal link exists between her protected conduct and the adverse
employment action. Moore v. City of Philadelphia, 461 F.3d 331, 340–41 (3d Cir. 2006).

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Young also argues that her constructive discharge was an adverse employment action6
for purposes of her retaliation claim. Because Young has not established a prima facie
case of a hostile work environment or constructive discharge, however, this argument
necessarily fails.
11
An “adverse employment action” under Title VII is an action by an employer that is
“serious and tangible enough to alter an employee’s compensation, terms, conditions, or
privileges of employment.” Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001)
(quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997)). “A
tangible employment action [is] also defined by reference to a non-exclusive list of
possible actions: ‘hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.’” Suders
v. Easton, 325 F.3d 432, 434 (3d Cir. 2003) (quoting Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 761 (1998)), rev’d on other grounds sub nom. Penn. State Police v. Suders,
542 U.S. 129 (2004).
Young argues that the District Court erred in concluding that Temple’s failure to
promote her to the position of “Senior COTA” did not constitute an adverse employment
action. We disagree. This position did not exist when Young requested the promotion,6
and no one at Temple promised her such a position would (or could) be created. Young’s
subjective expectation that Temple would create an entirely new position for her (and her
alone) cannot support a prima facie case of retaliation. Cf. Exum v. U.S. Olympic Comm.,
389 F.3d 1130, 1137 (10th Cir. 2004) (“An employer’s failure to promote a plaintiff to a

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non-existent position is not enough to support a presumption of intentional . . .
discrimination.”).
Even if Temple’s failure to create the Senior COTA position and promote Young
to that position could be considered an adverse employment action, we agree with the
District Court that Young failed to establish a causal link between her complaints to
Merkel and Temple’s failure to create the position. Young has presented no evidence to
substantiate her belief that Merkel came to believe she was “creating . . . disarray” in the
department by complaining about Brant, nor has she presented any evidence suggesting a
temporal link between her complaints and Merkel’s alleged decision to stop exploring the
possible creation of the position. See Estate of Smith v. Marasco, 318 F.3d 497, 513 (3d
Cir. 2003) (noting that, in the absence of a suggestive temporal link, a plaintiff must come
forward with other evidence suggestive of retaliatory animus).
* * * * *
Based on the foregoing, we affirm the judgment of the District Court.

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