On Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Court Below: 325 F. 3d 432
In March 1998, the Pennsylvania State Police (PSP) hired plaintiff-respondent Suders to work as a police communications operator for the McConnellsburg barracks, where her male supervisors subjected her to a continuous barrage of sexual harassment. In June 1998, Suders told the PSP's Equal Employment Opportunity Officer, Virginia Smith-Elliott, that she might need help, but neither woman followed up on the conversation. Two months later, Suders contacted Smith-Elliott again, this time reporting that she was being harassed and was afraid. Smith-Elliott told Suders to file a complaint, but did not tell her how to obtain the necessary form. Two days later, Suders' supervisors arrested her for theft of her own computer-skills exam papers. Suders had removed the papers after concluding that the supervisors had falsely reported that she had repeatedly failed, when in fact, the exams were never forwarded for grading. Suders then resigned from the force and sued the PSP, alleging, inter alia, that she had been subjected to sexual harassment and constructively discharged, in violation of Title VII of the Civil Rights Act of 1964.
The District Court granted the PSP's motion for summary judgment. Although recognizing that Suders' testimony would permit a fact trier to conclude that her supervisors had created a hostile work environment, the court nevertheless held that the PSP was not vicariously liable for the supervisors' conduct. In support of its decision, the District Court referred to Faragher v. Boca Raton,
The opinion of the court was delivered by: Justice Ginsburg
Plaintiff-respondent Nancy Drew Suders alleged sexually harassing conduct by her supervisors, officers of the Pennsylvania State Police (PSP), of such severity she was forced to resign. The question presented concerns the proof burdens parties bear when a sexual harassment/constructive discharge claim of that character is asserted under Title VII of the Civil Rights Act of 1964.
To establish hostile work environment, plaintiffs like Suders must show harassing behavior "sufficiently severe or pervasive to alter the conditions of [their] employment." Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 67 (1986) (internal quotation marks omitted); see Harris v. Forklift Systems, Inc., 510 U. S. 17, 22 (1993) ("[T]he very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their ... gender ... offends Title VII's broad rule of workplace equality."). Beyond that, we hold, to establish "constructive discharge," the plaintiff must make a further showing: She must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response. An employer may defend against such a claim by showing both (1) that it had installed a readily accessible and effective policy for reporting and resolving complaints of sexual harassment, and (2) that the plaintiff unreasonably failed to avail herself of that employer-provided preventive or remedial apparatus. This affirmative defense will not be available to the employer, however, if the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation, for example, a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions. In so ruling today, we follow the path marked by our 1998 decisions in Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, and Faragher v. Boca Raton, 524 U. S. 775.
Because this case was decided against Suders in the District Court on the PSP's motion for summary judgment, we recite the facts, as summarized by the Court of Appeals, in the light most favorable to Suders.*fn1 In March 1998, the PSP hired Suders as a police communications operator for the McConnellsburg barracks. Suders v. Easton, 325 F. 3d 432, 436 (CA3 2003). Suders' supervisors were Sergeant Eric D. Easton, Station Commander at the McConnellsburg barracks, Patrol Corporal William D. Baker, and Corporal Eric B. Prendergast. Ibid. Those three supervisors subjected Suders to a continuous barrage of sexual harassment that ceased only when she resigned from the force. Ibid.
Easton "would bring up [the subject of] people having sex with animals" each time Suders entered his office. Ibid. (internal quotation marks omitted). He told Prendergast, in front of Suders, that young girls should be given instruction in how to gratify men with oral sex. Ibid. Easton also would sit down near Suders, wearing spandex shorts, and spread his legs apart. Ibid. Apparently imitating a move popularized by television wrestling, Baker repeatedly made an obscene gesture in Suders' presence by grabbing his genitals and shouting out a vulgar comment inviting oral sex. Id., at 437. Baker made this gesture as many as five-to-ten times per night throughout Suders' employment at the barracks. Ibid. Suders once told Baker she " `d[id]n't think [he] should be doing this' "; Baker responded by jumping on a chair and again performing the gesture, with the accompanying vulgarity. Ibid. Further, Baker would "rub his rear end in front of her and remark `I have a nice ass, don't I?' " Ibid. Prendergast told Suders " `the village idiot could do her job' "; wearing black gloves, he would pound on furniture to intimidate her. Ibid.*fn2
In June 1998, Prendergast accused Suders of taking a missing accident file home with her. Id., at 438. After that incident, Suders approached the PSP's Equal Employment Opportunity Officer, Virginia Smith-Elliott, and told her she "might need some help." Ibid. Smith-Elliott gave Suders her telephone number, but neither woman followed up on the conversation. Ibid. On August 18, 1998, Suders contacted Smith-Elliott again, this time stating that she was being harassed and was afraid. Ibid. Smith-Elliott told Suders to file a complaint, but did not tell her how to obtain the necessary form. Smith-Elliott's response and the manner in which it was conveyed appeared to Suders insensitive and unhelpful. Ibid.
Two days later, Suders' supervisors arrested her for theft, and Suders resigned from the force. The theft arrest occurred in the following circumstances. Suders had several times taken a computer-skills exam to satisfy a PSP job requirement. Id., at 438-439. Each time, Suders' supervisors told her that she had failed. Id., at 439. Suders one day came upon her exams in a set of drawers in the women's locker room. She concluded that her supervisors had never forwarded the tests for grading and that their reports of her failures were false. Ibid. Regarding the tests as her property, Suders removed them from the locker room. Ibid.; App. 11, 119-120. Upon finding that the exams had been removed, Suders' supervisors devised a plan to arrest her for theft. 325 F. 3d, at 438-439. The officers dusted the drawer in which the exams had been stored with a theft-detection powder that turns hands blue when touched. Id., at 439. As anticipated by Easton, Baker, and Prendergast, Suders attempted to return the tests to the drawer, whereupon her hands turned telltale blue. Ibid. The supervisors then apprehended and handcuffed her, photographed her blue hands, and commenced to question her. Ibid. Suders had previously prepared a written resignation, which she tendered soon after the supervisors detained her. Ibid. Nevertheless, the supervisors initially refused to release her. Instead, they brought her to an interrogation room, gave her warnings under Miranda v. Arizona, 384 U. S. 436 (1966), and continued to question her. Ibid. Suders reiterated that she wanted to resign, and Easton then let her leave. Ibid. The PSP never brought theft charges against her.
In September 2000, Suders sued the PSP in Federal District Court, alleging, inter alia, that she had been subjected to sexual harassment and constructively discharged, in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U. S. C. §2000e et seq. App. 1, 12-13.*fn3 At the close of discovery, the District Court granted the PSP's motion for summary judgment. Suders' testimony, the District Court recognized, sufficed to permit a trier of fact to conclude that the supervisors had created a hostile work environment. App. to Pet. for Cert. 76a. The court nevertheless held that the PSP was not vicariously liable for the supervisors' conduct. Id., at 80a.
In so concluding, the District Court referred to our 1998 decision in Faragher v. Boca Raton, 524 U. S. 775. See App. to Pet. for Cert. 77a-78a. In Faragher, along with Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, decided the same day, the Court distinguished between supervisor harassment unaccompanied by an adverse official act and supervisor harassment attended by "a tangible employment action." Id., at 765; accord Faragher, 524 U. S., at 808. Both decisions hold that an employer is strictly liable for supervisor harassment that "culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment." Ellerth, 524 U. S., at 765; accord Faragher, 524 U. S., at 808. But when no tangible employment action is taken, both decisions also hold, the employer may raise an affirmative defense to liability, subject to proof by a preponderance of the evidence: "The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Ellerth, 524 U. S., at 765; accord Faragher, 524 U. S., at 807.
Suders' hostile work environment claim was untenable as a matter of law, the District Court stated, because she "unreasonably failed to avail herself of the PSP's internal procedures for reporting any harassment." App. to Pet. for Cert. 80a. Resigning just two days after she first mentioned anything about harassment to Equal Employment Opportunity Officer Smith-Elliott, the court noted, Suders had "never given [the PSP] the opportunity to ...