Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-17-1997

Bonenberger v. Plymouth Twp
Precedential or Non-Precedential:

Docket 97-1047




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Filed December 17, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-1047

CHERYL BONENBERGER,

       Appellant,

v.

PLYMOUTH TOWNSHIP; JOSEPH LA PENTA, SERGEANT,
PLYMOUTH TOWNSHIP POLICE DEPARTMENT

APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 96-cv-00403)

ARGUED SEPTEMBER 25, 1997

BEFORE: COWEN, ROTH, and LEWIS, Circuit Judges.

(Filed December 17, 1997)

       William L. McLaughlin, Jr.
        (ARGUED)
       23 South Valley Road
       Post Office Box 494
       Paoli, PA 19301

        Attorney for Appellant

       George H. Knoell, III (ARGUED)
       Kane, Pugh, Knoell & Driscoll
       510 Swede Street
       Norristown, PA 19401

        Attorney for Plymouth Township
       L. Rostaing Tharaud (ARGUED)
       Marshall, Dennehey, Warner,
        Coleman & Goggin
       1845 Walnut Street
       Philadelphia, PA 19103

        Attorney for Joseph La Penta

OPINION OF THE COURT

LEWIS, Circuit Judge.

Appellant Cheryl Bonenberger brought this sexual
harassment suit against her former employer, Plymouth
Township, located in Pennsylvania; the Plymouth Township
Police Department; and against Sergeant La Penta, a police
department employee. She has asserted claims under both
Title VII and 42 U.S.C. S 1983. This appeal requires us to
decide whether a police officer acts under "color of state
law" for purposes of 42 U.S.C. S 1983 when he sexually
harasses a co-employee whose work shift he supervises,
even if he is not her official supervisor and lacks authority
to hire or fire her. We must also apply our precedent in
Title VII sexual harassment cases, reaffirming the
established distinction between quid pro quo and hostile
work environment claims. For the reasons set forth below,
we will reverse in part and affirm in part the district court's
order of summary judgment dismissing Bonenberger's
allegations.

I.

Bonenberger worked as a dispatcher for the Plymouth
Township Police Department from about February 1993 to
April 11, 1994. She alleges that during her employment,
Sergeant Joseph La Penta regularly accosted her at work
with obscene remarks and unwelcome sexual advances.
She also claims that La Penta frequently fondled her
breasts or pinched her buttocks while she attempted to
complete work assignments. She contends that this ongoing
harassment occurred in the presence of police employees
and that management-level personnel became aware of La

                               2
Penta's conduct in January 1994, but for nearly three
months did nothing to curtail it. Bonenberger adds that
although she consistently rejected La Penta's advances, the
harassment persisted, driving her to resign her position as
dispatcher on April 11, 1994.

The parties agree that although La Penta did not hire
Bonenberger and was not her official supervisor, he
supervised all of the dispatchers, including Bonenberger,
when no higher-ranking officer was on duty. At such times
he had sole control over Bonenberger's work environment,
determining when she and the other dispatchers might take
a break and which tasks they would perform. Bonenberger
testified that on one such occasion, he grabbed her
buttocks in the presence of three other law enforcement
officials. The police department's own independent
investigation confirms that this incident occurred.

The district court granted defendants summary judgment
on Bonenberger's claims that (1) La Penta, individually and
in his official capacity, deprived her of the right to equal
protection in violation of 42 U.S.C. S 1983 and the
Fourteenth Amendment; (2) Plymouth Township Police
Department's failure properly to control, discipline and
train La Penta violated section 1983 and (3) Plymouth
Township Police Department contravened Title VII by
permitting La Penta's quid pro quo and hostile work
environment sexual harassment. The district court also
dismissed Bonenberger's state law claims of intentional
infliction of emotional distress and battery against La
Penta, and her claim against the police department under
the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat.
S 951 et seq. (1991), declining to exercise supplemental
jurisdiction over those claims pursuant to 28 U.S.C. S 1367.1
Reviewing the record de novo, we will reverse the district
_________________________________________________________________

1. 28 U.S.C. S 1367(c)(3) permits a district court to "decline to exercise
supplemental jurisdiction over a [state law] claim . . . if [it] has
dismissed
all claims over which it has original jurisdiction .. . ." Moreover, where
federal claims are dismissed before trial, the district court "must
decline
to decide the pendent state claims unless considerations of judicial
economy, convenience, and fairness to the parties provide an affirmative
justification for doing so." Borough of West Mifflin v. Lancaster, 

, 788 (3d Cir. 1995).

                               3
court's order of summary judgment on Bonenberger's
section 1983 claim against La Penta and on her Title VII
hostile work environment claim against the police
department. We will affirm the order of summary judgment
with respect to her section 1983 claim and her claim of
quid pro quo harassment against the department.

II.

A.

We address first Appellant's section 1983 claim against
Sergeant La Penta.2 A finding of liability under 42 U.S.C.
S 1983 "requires that the defendant . . . have exercised
power `possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of
state law.' " West v. Atkins, 

, 49 (1988) (quoting
United States v. Classic, 

, 326 (1941)). See also
Kost v. Kozakiewicz, 

, 184 (3d Cir. 1993).

The district court correctly concluded that state action is
a threshold issue in any section 1983 case. It erred,
however, in holding that La Penta's harassment could not
meet the color of law requirement solely because he "had
no authority to hire, fire or make any employment decision
regarding Bonenberger . . . ." Bonenberger v. Plymouth
Township, No. Civ. A. 96-403, 

, at *5 (E.D.
Pa. Dec. 18, 1996). A state employee may, under certain
circumstances, wield considerable control over a
subordinate whose work he regularly supervises, even if he
does not hire, fire, or issue regular evaluations of her work.
_________________________________________________________________

2. Section 1983 provides, in pertinent part,

       Every person who, under color of any statute, ordinance,
regulation,
       custom, or usage, of any State or Territory or the District of
       Columbia, subjects, or causes to be subjected, any citizen of the
       United States or other person within the jurisdiction thereof to
the
       deprivation of any rights, privileges, or immunities secured by the
       Constitution and laws, shall be liable to the party injured in an
       action at law, suit in equity, or other proper proceeding for
redress
       . . . .

42 U.S.C. S 1983 (1996).

                               4
See Poulsen v. City of North Tonawanda, 

,
895 (W.D.N.Y. 1993) (factual dispute about the defendant's
actual authority precludes summary judgment on section
1983 sexual harassment claim where plaintiff alleged that
defendant possessed unwritten authority to influence her
work evaluations and assignments). There is simply no
plausible justification for distinguishing between abuse of
state authority by one who holds the formal title of
supervisor, on the one hand, and abuse of state authority
by one who bears no such title but whose regular duties
nonetheless include a virtually identical supervisory role,
on the other.3

In so holding, we do not suggest that all acts of an on-
duty state employee are state action for purposes of section
1983. Although "state employment is generally sufficient to
render the defendant a state actor," 

(citation omitted), not all torts committed by state
employees constitute state action, even if committed while
on duty. For instance, a state employee who pursues purely
private motives and whose interaction with the victim is
unconnected with his execution of official duties does not
act under color of law. Mark v. Borough of Hatboro, 

, 1150 (3d Cir. 1995) ("[A]n otherwise private tort is
not committed under color of law simply because the
tortfeasor is an employee of the state."). In contrast, off-
duty police officers who flash a badge or otherwise purport
to exercise official authority generally act under color of
law. Rivera v. La Porte, 

, 696 (2d Cir. 1990)
(finding state action existed because offender identified
himself as peace officer, arrested plaintiff and used police
car). Thus, the essence of section 1983's color of law
requirement is that the alleged offender, in committing the
act complained of, abused a power or position granted by
the state.
_________________________________________________________________

3. It appears that Sergeant La Penta and Sergeant Carbo, Bonenberger's
official supervisor, performed exactly the same role when they were in
charge of the dispatchers' shifts. The only appreciable difference between
their authority over Bonenberger was that Carbo, not La Penta, was
responsible for submitting written evaluations of her work. While this
distinction is significant, it does not justify the district court's
conclusion
that La Penta exercised no professional authority over Bonenberger.

                               5
In holding that Sergeant La Penta's conduct was not
under color of law, the trial court relied heavily on
Woodward v. Worland, 

(10th Cir. 1992) and
a district court decision, Rouse v. City of Milwaukee, 921 F.
Supp. 583 (E.D. Wis. 1996). See Bonenberger, 

, at *3 & n.2. These cases are inapposite. The
Woodward court determined that the defendant police
officers lacked authority over the plaintiffs, three
dispatchers, only because the dispatchers worked for a
private company rather than the police department itself.
The Woodward court expressly "did not . .. decide whether
an outside third party or co-employee could ever be liable
for sexual harassment under [section] 1983 and the Equal
Protection Clause." 

. Moreover,
the same court of appeals that decided Woodward later
noted that "in some instances co-employees may exercise
de facto control over sexual harassment victims such that
they act under color of law." David v. City of Denver, 

, 1354 (10th Cir. 1996) (section 1983 sexual
harassment claim may not be dismissed for failure to state
claim upon which relief may be granted merely because the
defendants are non-supervisory co-workers).

We likewise find the district court decision in Rouse v.
City of Milwaukee, 

, 588 (E.D. Wis. 1996),
to be inapplicable to the facts of this case. The Rouse
plaintiffs and the police officer they sued for harassment
"held the same rank and [the harasser] had no authority to
give them orders." 

in Rouse therefore could
offer no evidence that the perpetrator acted under color of
law when he harassed them on the job. Instead, they
alleged only that the accused officer, whose official rank
was the same as theirs, had seniority and was generally
well-connected in the department. 

Penta, the
defendant in Rouse did not supervise the plaintiffs' work,
and his seniority afforded him no authority over his
colleagues' assignments.

In fact, the circumstances in Rouse stand in stark
contrast to Sergeant La Penta's direct power to give
Bonenberger orders when supervising her work shift. It is
undisputed that La Penta could alter her workload
whenever he supervised her shift. Indeed, as the

                               6
department's counsel conceded at oral argument, if
Bonenberger failed to follow his orders, the police
department would view that failure as insubordination for
which La Penta properly could begin a disciplinary process
that might result in her discharge. Under these
circumstances La Penta's role within the departmental
structure afforded him sufficient authority over
Bonenberger to satisfy the color of law requirement of
section 1983. C.f. 

(absent some
type of state authority on the part of the defendant, "it is
difficult to establish that the abusive action was
perpetrated `under color of state law' rather than as an
essentially private act of sexual harassment.") (citations
omitted). If a state entity places an official in the position of
supervising a lesser-ranking employee and empowers him
or her to give orders which the subordinate may not
disobey without fear of formal reprisal, that official wields
sufficient authority to satisfy the color of law requirement of
42 U.S.C. S 1983.

To conclude otherwise would be to create a perverse
incentive for government employers to avoid labeling
workers as supervisors, so as to insulate themselves from
section 1983 liability. Clearly, an employer should not be
permitted to evade so easily the statutory protections
against discrimination. We, therefore, look to substance
rather than form in determining whether an individual
defendant possesses supervisory authority. In doing so
here, and for the reasons discussed above, we will reverse
the district court's grant of summary judgment in favor of
La Penta.

B.

Bonenberger also alleges a section 1983 violation by
Plymouth Township Police Department.4 The district court
properly concluded that Bonenberger's allegations do not
create a genuine issue of fact concerning whether the
township's failure to train, discipline or control La Penta
_________________________________________________________________

4. As in past cases, we treat the municipality and its police department
as a single entity for purposes of section 1983 liability. See, e.g.,
Colburn
v. Upper Darby Township, 

, 671 n.7 (3d Cir. 1988).

                                7
violated 42 U.S.C. S 1983 and the equal protection clause of
the Fourteenth Amendment. Section 1983 would impose
liability for La Penta's inadequate training and discipline
only if the Plymouth Police Department was deliberately
indifferent to the rights of persons with whom he came in
contact. See City of Canton, Ohio v. Harris, 

,
388 (1989) (holding that inadequate police training cannot
give rise to mere respondeat superior liability). Deliberate
indifference exists if the challenged act implements a
municipal policy, i.e., a "statement, ordinance, regulation,
or decision officially adopted and promulgated by[a local
governing] body's officers." Simmons v. City of Philadelphia,

, 1059 (3d Cir. 1991) (citation omitted).
Section 1983 liability may also exist if the allegedly
unconstitutional action reflects "practices of state officials
. . . so permanent and well settled as to constitute a
`custom or usage' with the force of law." 

As a result, deficient training may form a basis for
municipal liability under section 1983 only if " `both
(1) contemporaneous knowledge of the offending incident or
knowledge of a prior pattern of similar incidents, and
(2) circumstances under which the supervisor's inaction
could be found to have communicated a message of
approval to the offending subordinate' " are present.
Freedman v. City of Allentown, 

, 1117 (3d
Cir. 1988) (quoting Colburn v. Upper Darby Township, 

, 673 (3d Cir. 1988)). Bonenberger has alleged no
specific inaction by La Penta's supervisors that could be
interpreted as encouraging his actions. To the contrary, it
is undisputed that the police department had a policy
against sexual harassment and that La Penta's regular
training included education intended to prevent such
behavior. Therefore, we will affirm the district court's order
granting summary judgment on Bonenberger's section 1983
claim against the department.

III.

We now turn to Bonenberger's allegation under Title VII,
in which she claims that she was subjected to hostile work
environment harassment by the Plymouth Township Police

                                8
Department. To make out a prima facie case of hostile work
environment sexual harassment under Title VII, a plaintiff
must prove

       (1) the employee suffered intentional discriminati on
       because of [his or her] sex; (2) the discrim ination was
       pervasive and regular; (3) the discrimination
       detrimentally affected the plaintiff; (4) the
       discrimination would detrimentally affect a reasonable
       person of the same sex in that position; and (5) the
       existence of respondeat superior liability.

Andrews v. City of Philadelphia, 

, 1482 (3d
Cir. 1990). We conclude that the district court erroneously
granted summary judgment in favor of the department on
Bonenberger's hostile work environment claim. Specifically,
we hold that the court erred in finding that Bonenberger
failed to satisfy the respondeat superior element of the
prima facie test. See Bonenberger, 

, at *8.

Respondeat superior liability exists in connection with a
hostile environment sexual harassment claim if either: (1)
the tort is committed within the scope of employment (i.e.,
the harasser has actual authority over the victim, by virtue
of his job description); (2) the employer was negligent or
reckless in failing to train, discipline, fire or take remedial
action upon notice of harassment; or (3) the offender relied
upon apparent authority or was aided in commission of the
tort by the agency relationship. See Bouton v. BMW of North
America, Inc., 

, 106 (3d Cir. 1994). Thus if the
employer knew or should have known of the harassment
and failed to take prompt remedial action, it is liable under
Title VII. 

.

In this case, the police department had a sexual
harassment policy in place during the entire period that
she worked there, and Bonenberger knew of the policy, yet
she did not file a formal report until shortly before leaving
the department. La Penta's supervisor, Captain Pettine,
testified that he learned of the harassment only five days
before Bonenberger quit, when it was reported by a
sergeant. He immediately questioned Bonenberger. Upon
learning that La Penta was the alleged aggressor, Pettine
informed Chief Cross and questioned La Penta about the

                                9
reported incidents. Bonenberger left the department a few
days later, claiming that she could no longer endure La
Penta's treatment. The department nonetheless continued
its investigation and despite inconclusive findings, issued
Sergeant La Penta a letter of reprimand. On the basis of
this evidence, the district court found no factual dispute
with respect to Bonenberger's hostile work environment
claim because "[d]efendants promptly and adequately
responded to Bonenberger's allegations of sexual
harassment." Bonenberger, 

, at *9.

The township's remedial actions insulate it from Title VII
liability only if they were "reasonably calculated to prevent
further harassment." Knabe v. Boury Corp., 

,
412 (3d Cir. 1997) (citations omitted). While the response
detailed above suggests that the department pursued
appropriate remedial action, the district court disregarded
evidence suggesting that "management-level employees had
actual or constructive knowledge about the existence of a
sexually hostile environment and failed to take prompt and
adequate remedial action" in violation of Title VII. Andrews,

. Specifically, Bonenberger testified that her
official supervisor, Sergeant Carbo, knew about and
acquiesced in La Penta's harassment. She stated that in
mid-January 1994, La Penta pinched her buttocks in front
of a group of officers, and that "all of the officers were
laughing, including Sergeant James Carbo" who was
"standing next to Sergeant La Penta when the incident
occurred."5 She also maintains that on April 1, 1994, La
Penta approached her from behind while she was speaking
to Sergeant Carbo and slid his hand across her chest.
According to Ms. Bonenberger, although she told La Penta
to stop, Carbo merely smiled and did not indicate in any
way that he disapproved of La Penta's actions.

Bonenberger also alleges that other management-level
officials knew she was being harassed almost two months
before she resigned and chose not to discipline La Penta or
otherwise curtail the harassment.6 She testified, and the
_________________________________________________________________

5. Reproduced Record, Volume I, at 184.

6. Bonenberger resigned from her position as dispatcher on April 11,
1994. The incident when La Penta grabbed her buttocks in front of three
other police officers allegedly occurred on February 13, 1994.

                               10
township's investigation confirmed, that on February 13,
1994, Sergeant La Penta grabbed her buttocks in the
presence of Sergeant Galetti, Officer Obenski, and Officer
McBride. The record shows that a few weeks after the
incident witnessed by Sergeant Galetti, the police
department distributed a new version of its sexual
harassment policy, which differed from the original policy
only in its inclusion of a statement that the policy also
applied to dispatchers. Bonenberger claims that this is
evidence that the department had become aware of La
Penta's actions and, as a result, amended and redistributed
its policy on harassment. Certainly, one might reasonably
question whether an employer's simple reissuance of an
existing sexual harassment policy is an appropriate
remedial action, particularly when the employer knows both
that harassment is occurring and the name of the
employees involved.7 The discrepancy between
Bonenberger's version of the facts and that urged by La
Penta, Plymouth Township and Plymouth Police
Department, presents an issue of material fact that should
be resolved at trial.

The police department also argues that its written sexual
harassment policy insulates it from Title VII liability for
hostile environment sexual harassment. But this would be
true only if that policy contained an effective grievance
procedure. See 

("[A]n effective
grievance procedure -- one that is known to the victim and
that timely stops the harassment -- shields the employer
from Title VII liability for a hostile work environment."). In
_________________________________________________________________

7. Since, under the police department's own policy, Sergeants Galetti and
Carbo were responsible for investigating complaints of sexual
harassment, see note 

, their failure to take prompt and
appropriate remedial action, if proven at trial, gives rise to
departmental
liability. See Young v. Bayer Corp., 

(7th Cir. 1997)(Title
VII
liability for hostile environment harassment arises when "information
[about sexual harassment] either (1) come[s] to the attention of someone
who (a) has under the terms of his employment, or (b) is reasonably
believed to have, or (c) is reasonably charged by law with having, a duty
to pass on the information to someone within the company who has the
power to do something about it; or (2) come[s] to the attention of such a
someone.").

                               11
this case, it is clear that the department's harassment
policy did not specify a grievance procedure.8 Since, as
previously noted, there exists a genuine dispute of material
fact as to whether the department's remedial efforts were
otherwise adequate, we must reverse.

IV.

Bonenberger also alleges that she suffered quid pro quo
sexual harassment. We recently held that "[u]nwelcome
sexual advances, requests for sexual favors, and other
verbal or physical conduct of a sexual nature constitute
[quid pro quo] sexual harassment when (1) submission to
such conduct is made either explicitly or implicitly a term
or condition of an individual's employment [or] (2)
submission to or rejection of such conduct by an individual
is used as the basis for employment decisions affecting
such individual . . . ." Robinson v. City of Pittsburgh, 

, 1296 (3d Cir. 1997) (quoting 29 C.F.R.
S 1604.11(a)(1) and (a)(2)).

Bonenberger maintains that two sets of facts alleged in
her complaint satisfy this definition. First, La Penta told her
that she had taken too many sick days, adding "you better
-- if you really like this job and you want to stay here, you
better start straightening out and conforming to the rules."
Bonenberger attempts to characterize this as a veiled threat
to have her fired for rejecting his sexual advances. Second,
she claims La Penta's behavior effectively conditioned her
continued employment upon her willingness to endure a
_________________________________________________________________

8. The department's policy is a two-page statement divided into four
sections. The first section, entitled "Purpose," is a paragraph generally
emphasizing that "the Plymouth Township Police Department will not
tolerate sexual harassment of any type." Plymouth Township Police
Department, General Order D-137, dated March 1, 1994, at 1. The
second section, "Policy" adopts the EEOC's definition of sexual
harassment, directs employees to refrain from engaging in such
harassment, states that complaints must be investigated, and indicates
that those who violate the policy will be disciplined. The third section
defines the terms "employee" and "sexual harassment," and offers
examples of offending conduct. The final section, "Distribution,"
indicates that a copy of the policy should be given to all personnel.

                               12
sexually-charged hostile work environment. Neither of these
theories alleges a claim of quid pro quo sexual harassment.

Although Bonenberger claims that she viewed La Penta's
warning about sick leave as a threat that La Penta would
seek to have her fired, she conceded at her deposition that
even when the statement was made, she knew La Penta
lacked power to terminate her employment. Title VII quid
quo pro sexual harassment generally requires that the
harasser have authority to carry out the quid pro quo offer
or threat. See Tomkins v. Public Service Electric & Gas Co.,

, 1048-49 (3d Cir. 1977) (quid pro quo sexual
harassment occurred when supervisor responsible for
evaluating plaintiff 's work stated during promotion
discussion that he expected her to have sexual relations
with him); Craig v. Y & Y Snacks, 

, 80 (3d Cir.
1983) (plaintiff 's dismissal for refusing sexual advances of
supervisor with plenary authority over employment
decisions was quid pro quo harassment). In this case, it is
undisputed that La Penta could not fire Bonenberger, even
assuming he actually threatened to do so.

More importantly, Title VII liability exists only if"the
consequences attached to an employee's response to the
sexual advances [are] sufficiently severe to alter the
employee's compensation, terms, conditions or privileges of
employment." 

. La Penta's
statement that abusing the department's sick leave policy
could cause her dismissal in no way changed the terms and
conditions of Bonenberger's employment, because she had
always been subject to dismissal for improperly failing to
report for work. Further, La Penta did not suggest, either by
word or action, that sexual favors were the price for keeping
her job. Therefore, we hold that the district court properly
concluded that no quid pro quo threat existed on this
record.

Bonenberger also presents a novel argument that
constructive discharge due to a hostile work environment
may provide the "quid" in a claim of quid pro quo sexual
harassment under Title VII. She argues that in her case, La
Penta's actions effectively made enduring his harassment a
condition of keeping her job. This reasoning confuses the
elements of quid pro quo and hostile work environment

                               13
harassment. Sex discrimination results in constructive
discharge if "the conduct complained of would have the
foreseeable result that working conditions would be so
unpleasant or difficult that a reasonable person in the
employee's shoes would resign." Goss v. Exxon Office
Systems Co., 

, 887-88 (3d Cir. 1984).
Although Bonenberger has alleged facts sufficient to survive
summary judgment on her claim of constructive discharge
due to a hostile work environment, this alone is not enough
to make out a claim for quid pro quo harassment. In this
case, there is no quo for the alleged quid of enduring the
hostile work environment. As noted above, quid pro quo
harassment requires a direct conditioning of job benefits
upon an employee's submitting to sexual blackmail, or the
consideration of sexual criteria in work evaluations. In the
absence of evidence that the employer intended to force the
plaintiff 's resignation, constructive discharge cannot form
the basis for quid pro quo sexual harassment.9 While the
line between quid pro quo and hostile work environment
harassment is not always clear and the elements present in
one case sometimes may give rise to both types of claims,
such is not the case here. We therefore reject Bonenberger's
hybrid legal theory and affirm the district court's order
granting summary judgment with respect to her claim of
quid pro quo harassment.

For the foregoing reasons, we affirm the district court's
order granting summary judgment with respect to
Bonenberger's Title VII claim of quid pro quo sexual
harassment and her section 1983 claim against Plymouth
Township. With regard to all other claims, we will vacate
the district court's order granting summary judgment and
remand for further proceedings consistent with this opinion.10
_________________________________________________________________

9. We do not decide whether constructive discharge, combined with
evidence that the employer sought to force a resignation, can ever
constitute quid pro quo sexual harassment. Since no such evidence has
been presented in this case, we defer resolution of this question for
another day.

10. We also reject Bonenberger's argument that the district court erred
in permitting Appellees additional time in which to amend their
summary judgment motion. Under the circumstances, this decision was
well within the district court's discretion.

                               14
On remand, the district court is directed to reinstate
plaintiffs' state law claims.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               15