Shawn Brooks v. Cbs Radio, Inc.

The Honorable T. S. Ellis III, Senior District Judge, United States District Court*
for the Eastern District of Virginia, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-1119
_____________
SHAWN BROOKS,
Appellant
v.
CBS RADIO, INC.
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Civil No. 07-cv-00519)
District Judge: Honorable Gene E.K. Pratter
______________
Submitted Under Third Circuit LAR 34.1(a)
January 9, 2009
________________
Before: CHAGARES, HARDIMAN, Circuit Judges, and ELLIS, Senior District Judge.*
(Opinion Filed: August 14, 2009)
______________
OPINION OF THE COURT

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2
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ELLIS, Senior District Judge.
Shawn Brooks appeals from the District Court’s grant of summary judgment in
favor of his former employer on the employment discrimination claims he brought under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. Because we agree
with the District Court that the record does not contain evidence from which a jury could
reasonably conclude that Brooks was subjected to a hostile work environment or
constructively discharged, we will affirm.
I.
Because we write solely for the benefit of the parties, we only briefly summarize
the essential, undisputed facts. In September 2000, Shawn Brooks began working as an
account executive for Infinity Broadcasting Corporation (“Infinity”), a corporation which
is now named CBS Radio, Inc. (“CBS Radio”). In that position, Brooks sold advertising
on radio station WYSP in connection with its broadcast of Philadelphia Eagles football
games. Among the approximately twenty-five account executives at WYSP, Brooks was
the only African-American. Brooks’s immediate supervisor was Joseph Zurzolo, the
Eagles Radio Network’s Sales Manager. Zurzolo was supervised by Peter Kleiner,
WYSP’s General Sales Manager, who was in turn supervised by Ken Stevens, WYSP’s
General Manager.
On May 9, 2001, Zurzolo held a sales meeting with the account executives for the

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Specifically, Brooks was offended by, inter alia, the following passages:1
(i) “If you are black selling to white Middle America, dress like a white. . . .
This clothing conveys that you are a member of the establishment and that
you are pushing no radical or other feared ideas.”
(ii) “Blacks selling to whites should not wear Afro hairstyles or any
clothing that is African in association. If you are selling to corporate
America, it’s very important that you dress, not as well as the white
salesman, but better than them. You have to wear suits, shirts and ties that
are expensive and more conservative than your white co-workers.”
(iii) “If you are white selling to blacks, you will fare much better if you
dress in non-establishment patterns. Black America is essentially divided
into two camps, establishment and anti-establishment, and the divisions are
not dictated by income alone. . . . Almost all members of Northern ghettos
who are in the lower socioeconomic groups are understandably anti-
establishment. . . . The black establishment includes all blacks who have
made it along with almost all Southern, rural blacks, no matter what their
position. Southern blacks do not consider themselves disenfranchised . . . .”
(iv) “When selling to middle class blacks, you cannot dress like a ghetto
black . . . .”
(v) “It is an undeniable fact that the typical upper-middle-class American looks
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Eagles Radio Network. During the meeting, Zurzolo distributed a book entitled New
Dress for Success and stated, “Per human resources, use it.” Zurzolo distributed the
book, which was recommended to him by Jeffrey Snodgrass, WYSP’s Sports Sales
Manager, because he felt one of the account executives, a white female, was dressing too
casually at work. Zurzolo did not read the book before distributing it.
After reading New Dress for Success, Brooks was offended by a number of the
book’s passages. On May 10, 2001, Brooks called Sandy Shields, WYSP’s Business1

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white, Anglo-Saxon and Protestant. He is of medium build, fair complexion with
almost no pronounced physical characteristics. He is the model of success; that is,
if you run a test, most people of all socioeconomic, racial and ethnic backgrounds
will identify with him as such.”
(vi) “The two groups who have the most problems with their appearances are black
men and Hispanic men. It is unfortunate but true that our society has conditioned
us to look upon members of both groups as belonging to the lower classes, and no
matter how high a minority individual rises in status or achievement, he is going to
have some difficulty being identified by his success rather than his background.
But clothing can help.”
(Administrative Record (“A.R.”) at 69–74.)
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Manager and Human Resources Director, to complain about the book. Shields told
Brooks that he had a right to be upset and that she would look into the matter. Shields
contacted Stevens, who instructed her to collect all copies of the book that had been
distributed to the station’s employees. Shields then contacted Kleiner, and together they
collected all copies of the book, except for Brooks’s copy. Kleiner also verbally
reprimanded Zurzolo for distributing New Dress for Success without reading it first. One
week after the book’s distribution, Kleiner attended an Eagles Radio Network sales
meeting and told the staff that the book did not represent the views of Infinity, himself, or
Zurzolo, who had not read the book prior to its distribution. Brooks, who after the book’s
distribution returned to the office only once, on May 28, 2001, to submit a resignation
letter and collect his personal items, was not present and did not know that Kleiner had
addressed the staff regarding the book’s distribution.
Following two additional telephone conversations with Shields on May 10 and

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May 11, 2001, Brooks felt Shields was not going to resolve the matter adequately.
Although Zurzolo and Kleiner left several phone messages for Brooks asking him to call
them, Brooks never communicated with any of his supervisors about the book’s
distribution because he did not trust them. Zurzolo had offended Brooks on a number of
occasions prior to the book’s distribution. Specifically, Brooks makes the following
additional allegations, which CBS Radio does not dispute for summary judgment
purposes:
(i) On one occasion, Zurzolo made a comment to Brooks about “having to
go with [Brooks’s] fiancée,” a statement perceived by Brooks to mean that
Zurzolo wanted to have sex with his fiancée.
(ii) On several occasions, Zurzolo “palmed,” or put his hand on, the head of
an African-American receptionist, a gesture Brooks viewed as racially
offensive.
(iii) On several occasions, Zurzolo used ethnic slurs, including “dago,” in
reference to himself.
(iv) On one occasion, Zurzolo inappropriately touched an African-American
receptionist while on a sales call.
(v) On one occasion, someone stole a promotional banner relating to
Brooks’s ING Direct account, an act Brooks perceived as racially
motivated.
Although Infinity had adopted a non-discrimination and anti-harassment policy that
encouraged employees to report offensive conduct, Brooks did not tell anyone in the

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Infinity’s policy stated that the corporation “will not tolerate any form of2
harassment on account of race” and that “[h]arrassing conduct includes, but is not limited
to[,] epithets, slurs or negative stereotyping; threatening, intimidating or hostile acts;
denigrating jokes and display or circulation in the workplace of written or graphic
material that denigrates or shows hostility or aversion toward an individual or group
(including through e-mail).” (Supp. A.R. at 17, 19.) The policy further instructed
employees to “report their complaints to their immediate supervisor, their Department
Head, their Station Manager, their Station’s designated Ombudsperson, or the Human
Resources Department before the conduct becomes severe or pervasive” and advised that
“[i]ndividuals should not feel obligated to file their complaints with their immediate
supervisor first before bringing the matter to the attention of one of the other Infinity
designated representatives identified above.” (Id. at 17.)
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office about these incidents because he felt such conduct was tolerated and accepted.2
On May 16, 2001, Brooks filed a complaint with the Pennsylvania Human
Relations Commission (“PHRC”), for dual filing with the EEOC, alleging that Infinity
had discriminated against him based on his race in violation of the Pennsylvania Human
Relations Act by (i) subjecting him to a hostile work environment and (ii) causing his
constructive discharge. Brooks’s administrative complaint did not identify any allegation
of harassment other than the book’s distribution. After the PHRC found probable cause
to believe the book’s distribution violated the Pennsylvania statute and after the parties
engaged in discovery, the PHRC held a public hearing on November 6 and November 7,
2003, before a hearing panel of three commissioners. At the hearing, Brooks testified
about the book’s distribution, as well as the other incidents of conduct he found offensive.
On February 28, 2005, the PHRC hearing panel issued findings of fact,
conclusions of law, and an opinion, all of which were adopted by the full PHRC in its

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The District Court reached this conclusion by first finding that, under federal law,3
Brooks had administratively exhausted his five additional allegations of harassment and
that these incidents could be considered as part of Brooks’s hostile work environment and
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final order. Relying on both the book’s distribution and three of Brooks’s additional
allegations of harassment, the PHRC found Brooks had established both his hostile work
environment claim and his constructive discharge claim and awarded him $614,262 in
economic damages.
On April 5, 2005, Infinity petitioned the Commonwealth Court of Pennsylvania to
review the PHRC’s decision. After the petition was granted, Brooks joined in the
PHRC’s brief and participated in oral argument. On February 9, 2006, the
Commonwealth Court reversed the PHRC’s decision, finding (i) that the PHRC should
have considered only the book’s distribution because Brooks did not include the
additional allegations of harassment in his PHRC complaint; and (ii) that the book’s
distribution was not sufficiently severe or pervasive to create a hostile work environment
or cause constructive discharge. The Pennsylvania Supreme Court denied the petitions
for review filed by the PHRC and Brooks.
On February 7, 2007, Brooks filed this civil action pursuant to Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. CBS Radio filed a motion to
dismiss on the ground that Brooks’s action was foreclosed by the doctrine of issue
preclusion and alternatively sought summary judgment. Although the District Court
denied the motion to dismiss, it granted CBS Radio’s motion for summary judgment.3

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constructive discharge claims in federal court. Because the Pennsylvania Commonwealth
Court had determined that, under state law, Brooks had failed to exhaust the additional
allegations, the District Court concluded that the issue decided in the prior state
adjudication was not identical to the one before it and accordingly denied the motion to
dismiss on the ground of issue preclusion. CBS Radio did not cross-appeal this ruling.
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Brooks timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1291.
II.
Summary judgment is appropriate only where, on the basis of the undisputed
material facts, the moving party is entitled to judgment as a matter of law. See Rule
56(c), Fed. R. Civ. P.; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In
determining whether the moving party has met its burden of demonstrating the absence of
any genuine issue of material fact, the facts must be viewed, and all reasonable inferences
must be drawn, in the light most favorable to the non-moving party. See Aman v. Cort
Furniture Rental Corp., 85 F.3d 1074, 1080–81 (3d Cir. 1996). Where, as here, the non-
moving party bears the burden of proof at trial, the moving party is entitled to summary
judgment on showing that there is a lack of evidence to carry the non-moving party’s
burden on an essential element of that party’s cause of action. See Celotex, 477 U.S. at
322–23. Our review of the grant of summary judgment is plenary. Moore v. City of
Phila., 461 F.3d 331, 340 (3d Cir. 2006).

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III.
The principles guiding our analysis of Brooks’s hostile work environment claim
are clear. To establish a Title VII claim for employment discrimination based on race and
due to a hostile work environment, a plaintiff must show (1) that he suffered intentional
discrimination because of race; (2) that the discrimination was severe or pervasive; (3)
that the discrimination detrimentally affected him; (4) that the discrimination would have
detrimentally affected a reasonable person of the same race in his position; and (5) that
there is a basis for vicarious liability. See Jensen v. Potter, 435 F.3d 444, 449 & n.3 (3d
Cir. 2006), overruled in part on other grounds by Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53 (2006); Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005).
Properly conducted, this analysis “must concentrate not on individual incidents, but on the
overall scenario.” Cardenas v. Massey, 269 F.3d 251, 261 (3d Cir. 2001) (internal
quotation marks and citations omitted); see also Harris v. Forklift Sys., Inc., 510 U.S. 17,
23 (1993) (“[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by
looking at all the circumstances.”).
In this case, the District Court’s analysis of Brooks’s hostile work environment
claim focused on the first two elements, and the District Court determined that a
reasonable jury could neither find that Brooks had suffered intentional discrimination
because of his race nor conclude that he had encountered severe or pervasive harassment.
Viewing all of the facts in the light most favorable to Brooks, we agree that Brooks’s

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There is some force to Brooks’s argument that the District Court misapplied the4
“totality of the circumstances” test when determining Brooks could not show that he
suffered intentional discrimination because of his race. The District Court began this
section of its analysis by noting that although “[f]acially neutral conduct in addition to
overt racial discrimination can support a hostile work environment claim[,] . . . there must
be at least some overt racially hostile words or conduct to signal the invidious nature of
the facially neutral conduct.” (A.R. at 23.) The District Court then concluded that
“because there were no overtly or explicitly racially hostile comments or conduct directed
at either Mr. Brooks or others,” the undisputed evidence in the record failed to raise a
genuine issue of fact as to whether the alleged conduct was intentionally based on race.
(A.R. at 24.) As Brooks correctly notes, this line of reasoning conflicts with language
found in Aman, where this Circuit indicated that acts of harassment need not be
“accompanied by racially discriminatory statements.” Aman, 85 F.3d at 1083; see id.
(“[O]vert racial harassment is not necessary to establish a hostile environment.”).
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hostile work environment claim cannot survive a motion for summary judgment. First, a
reasonable jury could not find from the record evidence that the incidents of harassment
of which Brooks complains were motivated by a racially discriminatory animus. To be
sure, the incidents of record may well suggest that Zurzolo was far from a model
supervisor and repeatedly exercised poor judgment, including on the occasion when he
distributed a book he had not read that contained racially offensive passages. Yet,
importantly, Title VII does not represent “‘a general civility code for the American
workplace’” and instead provides relief only to employees who suffer severe or pervasive
harassment because of a reason prohibited by Title VII. Jensen, 435 F.3d at 449 (quoting
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80–81 (1998)). Here, there is
simply nothing to suggest that Zurzolo or any other CBS Radio employee intentionally
discriminated against Brooks because of his race.4

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In any event, although the District Court erred by requiring Brooks to show some
form of overt racial harassment in order to establish that he was intentionally
discriminated against based on race, the District Court nonetheless correctly determined
that a reasonable jury could not find that the alleged harassment was motivated by a
racially discriminatory animus. Indeed, under Aman, Brooks was required to present “a
showing that race is a substantial factor in the harassment, and that if the plaintiff had
been white [he] would not have been treated in the same manner.” Id. This he simply
failed to do.
Given that the second prong, the “severe or pervasive” element, includes both an5
objective and subjective inquiry, this requirement substantially overlaps with the third and
fourth elements of this Circuit’s hostile work environment claim, which respectively
require a plaintiff to establish (i) that the discrimination detrimentally affected him and
(ii) that the discrimination would have detrimentally affected a reasonable person of the
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Moreover, even assuming Brooks could establish that he suffered intentional
discrimination because of his race, his hostile work environment claim would still fail
because it is pellucidly clear that the incidents he has identified do not constitute the kind
of severe or pervasive harassment required by Title VII. See Harris, 510 U.S. at 21–22.
It is well established that to prove the second element of a hostile work environment
claim, a plaintiff must show that his workplace was “permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.”
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) (internal quotation
marks and citation omitted). Further, it is not sufficient for Brooks to have subjectively
perceived the harassment as severe or pervasive; the conduct in question must also be so
severe or pervasive that it creates an objectively hostile work environment. See Weston v.
Pennsylvania, 251 F.3d 420, 426 (3d Cir. 2001). In this respect, it is clear that5

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same protected class in his position. Cf. Jensen, 435 F.3d at 451 (“When applied, [the
second and fourth prongs] coalesce into a single inquiry: did the plaintiff suffer . . .
harassment severe or pervasive enough to alter the conditions of her employment and
create an abusive working environment?” (internal quotation marks and citations
omitted)).
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“[o]ccasional insults, teasing, or episodic instances of ridicule are not enough; they do not
‘permeate’ the workplace and change the very nature of the plaintiff’s employment.”
Jensen, 435 F.3d at 451. In determining whether harassment is sufficiently severe or
pervasive to give rise to a Title VII action, courts must “look[] at all the circumstances,”
including “the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23.
These principles, applied here, compel the conclusion that no reasonable jury could
find that Brooks experienced racial harassment so severe or pervasive that it “alter[ed] the
conditions of [his] employment and create[d] an abusive environment.” Morgan, 536
U.S. at 116. Although Brooks was understandably offended by the contents of the book
he was instructed by Zurzolo to read and follow, the record is clear that Zurzlo did not
know about the book’s offensive passages and that employees were quickly informed that
the book did not reflect the views of the company or their supervisors. Given this, the
distribution of New Dress for Success does not represent sufficiently severe harassment to
support a Title VII hostile work environment claim. Nor does this conclusion change
when the other incidents of which Brooks complains are taken into account. The

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13
harassment Brooks alleges he faced in his workplace was not particularly frequent and
was certainly not physically threatening or humiliating; indeed, it is difficult to conceive
how the alleged harassment would have had any real interference with Brooks’s work
performance. In short, all of the alleged incidents, taken together and viewed in the light
most favorable to Brooks, fail to establish that the workplace at WYSP was “permeated
with discriminatory intimidation, ridicule, and insult” such that the nature of Brooks’s
employment was changed, and the District Court’s grant of summary judgment on
Brooks’s hostile work environment claim was appropriate for this reason alone. Id.
We reach the same conclusion for essentially similar reasons with respect to
Brooks’s constructive discharge claim. To establish constructive discharge, a plaintiff
must show that “the employer knowingly permitted conditions of discrimination in
employment so intolerable that a reasonable person subject to them would resign.” Goss
v. Exxon Office Sys. Co., 747 F.2d 885, 888 (3d Cir. 1984); see also Aman, 85 F.3d at
1084. Here, Brooks cannot rely on any of the indicators often raised by employees who
assert constructive discharge claims. He was never threatened with discharge, nor did
CBS Radio ever urge or suggest he resign or retire. He was not demoted, and his pay and
benefits were not reduced. He was not involuntarily transferred to a less desirable
position, his job responsibilities were not altered in any way, and he was not given
unsatisfactory job evaluations. See Clowes v. Allegheny Valley Hosp., 991 F.2d 1159,
1161 (3d Cir. 1993) (noting, in reversing judgment in favor of plaintiff’s constructive

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discharge claim, that plaintiff could not show the above-named factors). Additionally, “a
reasonable employee will usually explore . . . alternative avenues thoroughly before
coming to the conclusion that resignation is the only option.” Id. Yet, Brooks stopped
coming to work immediately after the book’s distribution and had no communication with
any of his supervisors about any of the incidents. Moreover, given our conclusion that
Brooks has failed to present any evidence of intentional racial discrimination or of severe
or pervasive harassment, it follows that a reasonable person in Brooks’s position would
not have felt compelled to resign. Accordingly, the District Court appropriately granted
CBS Radio’s motion for summary judgment as to Brooks’s constructive discharge claim.
In addition to his arguments that the District Court erred in determining that a jury
could not reasonably conclude that he was subjected to a hostile work environment or
constructively discharged, Brooks’s primary contention in this appeal is that the District
Court erred in considering facts that were not explicitly found by the PHRC. Brooks’s
argument, distilled to its essence, is that (i) because, under Pennsylvania state law, a state
court reviewing a PHRC decision is limited to determining whether “substantial
evidence” exists to support the PHRC’s findings, see Harrisburg Sch. Dist. v.
Pennsylvania Human Relations Comm’n, 77 Pa. Commw. Ct. 594, 596 (1983), and (ii)
because federal law “requires federal courts to give the same preclusive effect to state
court judgments that those judgments would be given in the courts of the State from
which the judgments emerged,” Kremer v. Chem. Constr. Corp., 456 U.S. 461, 466

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(1982), the PHRC’s factual findings have preclusive effect in this action and, moreover,
represent the only facts that could be considered by the District Court. Although
Brooks’s two premises are correct, the conclusion he wishes us to draw plainly does not
follow. First, while it is clear that a state court’s judgment affirming a state
administrative agency’s determination is entitled to preclusive effect in a subsequent Title
VII action under 28 U.S.C. § 1738, see Kremer, 456 U.S. at 463, it is equally well
established that unreviewed state administrative proceedings do not receive preclusive
effect on Title VII claims brought in federal court, see Univ. of Tenn. v. Elliott, 478 U.S.
788, 796 (1986). Here, although the state administrative proceeding was reviewed by a
state court, that state court reversed the PHRC’s decision. Given this, the PHRC’s
findings of fact clearly cannot be given the preclusive effect that Brooks asserts.
Moreover, even if the Pennsylvania Commonwealth Court had affirmed the PHRC’s
decision and the PHRC’s findings were accordingly entitled to receive preclusive effect in
federal court, they would not, as Brooks suggests, become the factual record or the sole
facts the District Court could consider. Rather, under settled Pennsylvania principles of
issue preclusion, the parties would be foreclosed from relitigating “‘an issue of fact or law
which was actually litigated and which was necessary to the original judgment.’” Dici v.
Pennsylvania, 91 F.3d 542, 548 (3d Cir. 1996) (quoting Hebden v. Workmen’s Comp.
Appeal Bd., 534 Pa. 327, 330 (1993)). There is thus no merit to Brooks’s claim that the

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Brooks also contends that the District Court should have treated the PHRC6
findings as jury findings and limited itself to determining whether those findings were
supported by sufficient evidence. Because Brooks’s argument that the PHRC should
have been treated as the fact-finder in the federal action rests on his fatally flawed
assertion that the PHRC findings should have been given preclusive effect, this argument
also fails to persuade. Moreover, it lacks any foundation in logic or authority.
16
District Court erred in considering facts not found by the PHRC.6
III.
We have considered all of Brooks’s arguments on appeal, and none succeed to
persuade. Because a jury could not reasonably conclude that Brooks was subjected to a
hostile work environment or constructively discharged, we will affirm the judgment of the
District Court.

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