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


6-23-1997

Graves v. Lowery
Precedential or Non-Precedential:

Docket 96-7277




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Filed June 23, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-7277

MARCA M. GRAVES; ANTOINETTE R. TRUEITT; LAURA
SEGARRA; DEBRA C. NAPPER; MARSHELL L. NAPPER;
SHERRY L. REIFF; DOROTHY R. CLEMONS,

Appellants,

v.

HORACE A. LOWERY, Individually and in his official
capacity as District Justice of the Magisterial District
12-1-04; THE COUNTY OF DAUPHIN; SUPREME COURT
OF THE COMMONWEALTH OF PENNSYLVANIA,
Commonwealth of Pennsylvania

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

(D.C. Civil No. 95-cv-01624)

ARGUED DECEMBER 12, 1996

BEFORE: BECKER, MANSMANN and LEWIS,
Circuit Judges.

(Filed June 23, 1997)
James J. West (ARGUED)
105 North Front Street
Harrisburg, PA 17101

Attorney for Appellants

A. Taylor Williams
Supreme Court of Pennsylvania
Administrative Office of PA Courts
1515 Market Street, Suite 1414
Philadelphia, PA 19102

Attorney for Appellees, Horace A.
Lowery and Supreme Court of
Pennsylvania

David A. Wion (ARGUED)
Jeffrey L. Troutman
Office of County Solicitor
County of Dauphin
Post Office Box 1295
Harrisburg, PA 17108

Leonard Tintner
Boswell, Snyder, Tintner & Piccola
315 North Front Street
Post Office Box 741
Harrisburg, PA 17108-0741

Attorneys for Appellee, County of
Dauphin

OPINION OF THE COURT

LEWIS, Circuit Judge.

Seven former clerks, who worked in a state judicial
district in Dauphin County, Pennsylvania (the "Clerks"),
brought a sex discrimination suit pursuant to Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq., in
the Middle District of Pennsylvania, which named Dauphin
County, among others, as a defendant. The district court

                   2
dismissed the Clerks' complaint against Dauphin County
pursuant to Rule 12b(6) of the Federal Rules of Civil
Procedure on the ground that as a matter of law, Dauphin
County could not be considered either the Clerks'
"employer" or "co-employer." Graves v. Lowery, No. CV-95-
1624 (M.D. Pa. April 8, 1996). The Clerks appeal from the
district court's order dismissing their complaint.

On appeal, we are asked to address a narrow and unique
question of employer liability under Title VII: whether the
Clerks, who are formally considered employees of the
judicial branch of the Commonwealth of Pennsylvania, are
precluded, as a matter of Pennsylvania law, from pursuing
a federal employment discrimination claim against Dauphin
County, Pennsylvania. For the reasons stated below, we
conclude that they are not so precluded. Accordingly, we
will reverse the district court's order.

I.

The issue for resolution here arises from the continued
uncertainty surrounding the structure of Pennsylvania's
judicial system. In 1968, the Pennsylvania Constitution was
amended to create a "Unified Judicial System." Pa. Const.
art. V, § I; 42 Pa. Cons. Stat. Ann. § 301 (West 1981)
(corresponding statutory provision). That system, however,
has yet to be fully implemented. Most significantly, for
example, county courts continue to be funded by the
individual counties in which those courts sit.1 Thus, the
salaries of court employees are paid by county governments
rather than the state.

Because this system of funding is contrary to the idea of
a "Unified Judicial System," the Pennsylvania Supreme
Court struck down the system as unconstitutional. See
County of Allegheny v. Commonwealth, 

(Pa.
1987).2 The court then stayed its order, directing the state
_________________________________________________________________

1. Pennsylvania's unified court system consists of "the Supreme Court,
the Superior Court, the Commonwealth Court, courts of common pleas,
community courts, municipal and traffic courts in the City of
Philadelphia, such other courts as may be provided by law and justices
of the peace." Pa. Const. art. V, § 1.

2. In particular, the Pennsylvania Supreme Court noted that county
funding of county courts was an impediment to judicial unification

                   3
legislature to enact a new funding system that would truly
"unify" the Pennsylvania judiciary. 

To date, the
state legislature has failed to enact a constitutional funding
scheme. See Jim Strader, Counties Want State to Fund
Courts; Supreme Court Will Try Again to Persuade
Legislature to Pay for Running County Courts, Pitt. Post
Gazette, Jan. 5, 1997, at B5; Phyllis W. Beck, Foreword: A
Blueprint for Judicial Reform in Pennsylvania, 62 Temp. L.
Rev. 693, 697 (1988) (describing unification of the judicial
system as still "at the drawing board stage"). As a
consequence, the uncertain status of the Unified Judicial
System continues to cause a myriad of funding-related
problems. See, e.g., Jiuliante v. County of Erie, 

(Pa. 1995) (court of common pleas sought to recoup
from county attorney's fees incurred by court in defending
itself against application of county's antinepotism policy to
court employees); Snyder v. Snyder, 

(Pa.
1993) (dispute between court of common pleas and county
over raise for court employees).

The Clerks -- Marca M. Graves, Antoinette R. Trueitt,
Laura Segarra, Debra C. Napper, Marshell L. Napper,
Sherry L. Reiff, and Dorothy R. Clemons -- worked in
Magisterial District 12-1-04, which is situated in and
funded by Dauphin County, Pennsylvania.3 The Clerks
worked under District Justice Horace A. Lowery, who was
appointed in August of 1992 to fulfill the remaining term of
a previous district justice.4 Approximately twenty-five clerks
_________________________________________________________________

because the potential infiltration of county politics would erode the
integrity and impartiality of the judicial system. See County of 

("[I]f court funding is permitted to continue in the hands
of local political authorities it is likely to produce nothing but suspicion
or perception of bias and favoritism.").

3. Pennsylvania is divided into 60 judicial districts. 42 Pa. Cons. Stat.
Ann. § 901 (West 1996). Dauphin County is judicial district #12. 

are drawn within a given judicial district according
to current population densities. 

(West 1981).

4. There is one district justice in each magisterial district. See 42 Pa.
Cons. Stat. Ann. § 1511 (West 1981). District Justices have jurisdiction
over such matters as landlord-tenant disputes, misdemeanor criminal
offenses and civil claims for less than $8,000.00. See 

(West
1996).

                    4
worked in Magisterial District 12-1-04 when District Justice
Lowery came into office. Not one of the seven clerks who
are parties to this appeal was hired by Lowery.

Within a short time after Lowery's arrival, the Clerks
notified the office manager, Noime LeGrand, that Lowery
had been sexually harassing them. The Clerks notified
LeGrand pursuant to procedures set out in the sexual
harassment policy contained in the Dauphin County
Personnel Manual. After an investigation, LeGrand
concluded that the Clerks' claims had merit and that
Lowery's harassing conduct was pervasive.

On January 20, 1993, LeGrand, along with nine co-
workers, including the Clerks, submitted a formal
complaint to the Dauphin County Court Administrator
alleging various incidents of sexual harassment by Lowery.
In response, Dauphin County convened an investigative
panel, which was chaired by the County's Chief Clerk. The
County also made counseling services available to the
Clerks.

Soon after the investigative panel was convened, Lowery
fired LeGrand and an assistant bookkeeper, Elista Vennie.
Lowery notified the Dauphin County Commissioners of his
decision to terminate the two employees. Dauphin County,
however, refused to effectuate the terminations and,
instead, assigned the two employees to other magisterial
districts within the County. The County continued to draw
the salaries of LeGrand and Vennie from Lowery's budget.
According to the County, it refused to effectuate Lowery's
termination of the employees because it was concerned
about its own potential liability if the employees later
proved that Lowery's termination of the employees
amounted to retaliatory discharge.

Lowery then took a number of other retaliatory actions,
including firing two of the Clerks -- Marca Graves and
Sherry Reiff. He also refused to approve vacation time and
other requests for some of the other clerks.

Later, Lowery sought to fill the two positions vacated by
LeGrand and Vennie. The County, however, refused to
approve funding for the positions, maintaining that because
LeGrand and Vennie -- the "terminated" employees -- were

                   5
still on the payroll and because their paychecks were
coming out of Lowery's budget, he was, in effect, asking for
funding for two additional positions.

In an effort to compel the County to terminate LeGrand
and Vennie and provide the funding necessary to hire two
new employees, Lowery filed suit against the County in the
Pennsylvania Commonwealth Court. The Commonwealth
Court held that "Lowery has the authority to discharge his
employees without approval from the county
commissioners, and the right to refill the positions thus
vacated in his office." Lowery v. Sheaffer, No. 62 M.D.
1993, slip op. at 4 (Pa. Commw. May 13, 1993). In addition,
the court found that the County was required by state law
to provide the court with adequate funding to maintain its
operation. 

then removed LeGrand and
Vennie from the payroll.

LeGrand and Vennie filed suit in the Middle District of
Pennsylvania under Title VII and 42 U.S.C. § 1983 against
Lowery and Dauphin County.5 LeGrand and Vennie alleged
that the County's funding of their positions was sufficient
to impose employer status on the County. Thus, according
to LeGrand and Vennie, the County could be held liable
under both Title VII and § 1983 theories. LeGrand v.
Lowery, No. CV-93-1980, slip op. at 4 (M.D. Pa. May 3,
1994). The district court dismissed the complaint against
Dauphin County pursuant to Rule 12b(6), holding that
because the judiciary was defined by state law as the
employer of judicial personnel, Dauphin County could not
be considered the employer of LeGrand and Vennie. 

We affirmed that decision by judgment order. LeGrand v.
Lowery, 

(3d Cir. 1995) (unpublished table
decision).
_________________________________________________________________

5. The Clerks and Dauphin County assert that the lawsuit filed by
LeGrand and Vennie was brought under 42 U.S.C. § 1983 only. The
district court, however, stated that the suit was brought under § 1983
and Title VII. See LeGrand v. Lowery, No. CV-93-1980, slip op. at 2
(M.D. Pa. May 3, 1994). Because the district court's analysis in LeGrand
clearly discussed Dauphin County's potential liability in Title VII terms,
see 

we will assume that LeGrand and Vennie did assert a Title
VII claim.

                    6
LeGrand's claim proceeded against Lowery and, at a
subsequent jury trial, Lowery was found individually liable
to LeGrand under 42 U.S.C. § 1983.6 Immediately
thereafter, Lowery filed for personal bankruptcy protection.

The Clerks filed this Title VII action in the Middle District
of Pennsylvania on September 26, 1995, against Lowery,
the Pennsylvania Supreme Court and Dauphin County. The
Clerks premised Title VII liability against the defendants on
the following theory: that District Justice Lowery engaged in
a pattern of quid pro quo sexual harassment, created a
hostile working environment and retaliated against the
Clerks for reporting his conduct; that Lowery was the
supervisor of the Clerks; that Dauphin County was the co-
employer of the Clerks; and that the Pennsylvania Supreme
Court was the co-employer of the Clerks. The Clerks also
alleged that, through custom, the Pennsylvania Supreme
Court had delegated its statutorily granted governing
authority over court employees to Dauphin County. In sum,
the Clerks claimed that all three defendants exercised some
employer-type authority over them and, accordingly, all
three defendants could be held liable for Lowery's harassing
conduct under Title VII.

Dauphin County filed a motion to dismiss on the ground
that under the Unified Judicial System, District Justice
Lowery had the sole power to hire, fire and supervise his
employees. The district court agreed and dismissed the
complaint against Dauphin County, finding the case
indistinguishable from LeGrand, which had previously
determined that the County could not be considered an
employer of county court employees. See Graves v. Lowery,
No. CV-95-1624, slip op. at 2 (M.D. Pa. Apr. 8, 1996) (citing
LeGrand v. Lowery, No. CV-93-1980, slip op. at 8 (M.D. Pa.
May 3, 1994)). The Clerks appeal from the district court's
dismissal of their complaint against Dauphin County.7
_________________________________________________________________

6. LeGrand was awarded $30,000 in damages. Vennie apparently
dropped out of the case prior to the judgment.

7. The Pennsylvania Supreme Court settled with the Clerks prior to the
entry of the district court's order dismissing the Clerks' complaint
against Dauphin County. Dauphin County implies that, by settling, the
Pennsylvania Supreme Court has accepted responsibility as the employer

                   7
The district court had jurisdiction under 28 U.S.C.
§ 1331. We have appellate jurisdiction under 28 U.S.C.
§ 1291.

II.

Our review of a district court's decision to dismiss a
complaint for failure to state a claim is plenary. Nami v.
Fauver, 

, 65 (3d Cir. 1996). We must accept as
true "the factual allegations in a complaint and all
reasonable inferences that can be drawn therefrom." Holder
v. City of Allentown, 

, 194 (3d Cir. 1993)
(quoting Markowitz v. Northeast Land Co., 

,
103 (3d Cir. 1990)). Thus, a court should not grant a
motion to dismiss "unless it appears beyond a doubt that
the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Conley v. Gibson, 

, 45-46 (1957).

Dauphin County contends that the Clerks can assert no
set of facts that would create an employer-employee
relationship between the Clerks and Dauphin County. In
_________________________________________________________________

of the Clerks. As the Clerks note, however, the Pennsylvania Supreme
Court did not concede its employer status. The Clerks state that the
Pennsylvania Supreme Court asserted the following in support of its
motion to dismiss:

"[T]he general authority of the Supreme Court over courts of
common pleas, let alone an individual magisterial district, is rarely
if ever used, and the Unified Judicial System is not yet a reality. In
light of [the] stay of the Allegheny County decision, the current
system remains in place, and the Supreme Court exercises its
supervisory powers only to do that which is reasonably necessary to
insure the integrity of the system and the efficient administration of
justice."

Appellants' Reply Brief at 2 (quoting Memorandum of the Supreme
Court of Pennsylvania in Support of Motion to Dismiss).

For purposes of this appeal, we will assume that the Pennsylvania
Supreme Court has not accepted responsibility as the employer or co-
employer of the Clerks. We note, however, that under the Clerks' theory
of liability, the Pennsylvania Supreme Court's status as their employer
would not preclude the co-employer liability of the County.

                    8
Dauphin County's view, because the Clerks served at the
discretion of District Justice Lowery, only he can properly
be considered their employer. This employment
relationship, the County claims, is defined by the
Pennsylvania Constitution's requirement of a Unified
Judicial System. See Pa. Const. Art. V, § 1.

The statutes which implement the Pennsylvania
Constitution's requirement of a unified system define the
personal staff of judicial officers as "[p]rivate secretaries,
law clerks and such other personnel as an individual may
be authorized by law to select and remove . . . ." 42 Pa.
Cons. Stat. Ann. § 102 (West 1981). Individual counties are
required to maintain a judicial account from which they
must pay the salaries, fees and expenses of the court
systems within that county. See 

Allegheny
County v. Commonwealth, 

(Pa. 1987).

Dauphin County maintains that even though counties
across Pennsylvania are required to pay the salaries of
court personnel, the personnel are "employed" by the
courts. To support this contention, the County relies on a
Pennsylvania Supreme Court decision, which held:

Since the court has the inherent right to hire,
discharge and supervise, an employer-employee
relationship exists by definition between the judges and
their appointees. The fact that those employees are
paid by the county does not alter the court's employer
status.

County of Lehigh v. Pennsylvania Labor Relations Bd., 

, 1327 (Pa. 1985) (citations omitted).

We do not dispute the proposition that the courts are
considered the employers of judicial personnel. In our view,
however, this fact does not preclude the possibility that a
county may share co-employer or joint employer status
with the courts. While we have found no case which directly
implicates this issue in the factual scenario we confront
here (that is to say, which involves the narrow question of
the division of responsibilities between counties and courts
vis-a-vis judicial personnel), we draw some guidance from
cases which have found joint employment status when two
entities exercise significant control over the same

                    9
employees. Cf. NLRB v. Browning-Ferris Indus. of Penn. Inc.,

, 1123 (3d Cir. 1982) (recognizing concept of
"joint employer" when separate entities share or co-
determine conditions of employment); Rivas v. Federacion
de Asociaciones Pecuarias, 

, 820-21 (1st Cir.
1991) (recognizing that when an entity exercises sufficient
control over employees it may be considered a "joint
employer"); G. Heileman Brewing Co., Inc. v. NLRB, 

, 1531 (7th Cir. 1989) (same). We emphasize that
this case is unique, and we recognize that the cases we rely
upon in connection with this question are factually
distinguishable. But consistent with the legal principle of
joint employer status discussed in these cases, we conclude
that although a court may have the "inherent right" to hire
and fire employees -- even though those employees are
paid by a county -- it may also have the derivative right to
delegate employer-type responsibilities to a county.

Here, the Clerks allege exactly that -- i.e., that the
County acted on authority delegated to it by the
Pennsylvania Supreme Court. Specifically, the Clerks allege
that the County was integrally involved in their employment
activities. For example, the Clerks were covered by the
County's personnel policies.8 Additionally, every five years,
the Clerks received pins for excellent service from the
County. Thus, unlike the plaintiffs in LeGrand, the Clerks
do not contend that Dauphin County's funding of their
positions alone is sufficient to impose co-employer status
on the County. See LeGrand v. Lowery, No. CV-93-1980,
slip op. at 4 (M.D. Pa. May 3, 1994) ("[T]he plaintiffs
contend that County funding of the plaintiffs' positions is
indeed sufficient in itself to impose employer status on the
County."). Rather, the Clerks argue that the County
assumed de facto responsibility over their employment.

The district court rejected the contentions of the Clerks,
concluding that this case was indistinguishable from
LeGrand, which, of course, arose from the same facts as
those presented here.9 Because LeGrand formed the basis
_________________________________________________________________

8. These policies included holidays, vacation time, maternity leave, sick
leave, etc.
9. As noted earlier, LeGrand was summarily affirmed by this Court. See
LeGrand v. Lowery, 

(3d Cir. 1995) (unpublished table
decision).

                    10
of the district court's decision in this case, we will discuss
LeGrand in some detail.

In LeGrand, the district court concluded that county
funding of the plaintiffs' positions was insufficient to
impose employer status on Dauphin County. LeGrand, slip
op. at 4. While conceding that a payor-payee relationship is
generally indicative of an employer-employee relationship,
the court found funding alone insufficient to impose
employer status on Dauphin County because the County
was required by state law to fund positions for the courts.
In other words, the court found that the County's lack of
authority over the personnel decisions of the court absolved
the County of any liability as an employer. 

The
LeGrand court did acknowledge, however, that the proper
inquiry under Title VII for determining employer status
looks to the nature of the relationship regardless of whether
that party may or may not be technically described as an
"employer." 

The inquiry, as articulated by Sibley
Memorial Hospital v. Wilson, 

, 1342 (D.C. Cir.
1973), looks to the level of control an organization asserts
over an individual's access to employment and the
organization's power to deny such access. See also
Amarnare v. Merrill Lynch, Pierce, Fenner & Smith Inc., 

, 348 (S.D.N.Y. 1984) ("When an employer has
the right to control the means and manner of an
individual's performance . . . an employer-employee
relationship is likely to exist."), aff'd, 

(2d Cir.
1985). The LeGrand court found that under the "control"
test, the County's lack of authority to withhold funding for
the employees' positions precluded the County from
"controlling access" to the employees' employment
opportunities. LeGrand, slip op. at 8.

Although we do not disagree with the district court's
analysis in LeGrand, in our view, LeGrand is
distinguishable from this case. Unlike the plaintiffs in
LeGrand, the Clerks have alleged facts in their complaint,
which, if proven, would allow them to show that Dauphin
County, through its actions, was the de facto co-employer
of the Clerks. As noted earlier, the Clerks do not contend
that Dauphin County's funding of their positions is
sufficient to impose employer status on the County. Rather,

                     11
the Clerks claim that the County, through its funding,
actions and policies, exercised the requisite control over the
daily employment activities of the Clerks to incur liability as
a co-employer.

Further, and perhaps most important, the Clerks contend
that two of them were hired by County officials to work in
Magisterial District 12-1-04.10 In our view, this asserted fact
alone should have precluded the district court from
deciding the matter on a motion to dismiss.11

We also find it significant that the Clerks were covered by
the County's sexual harassment policy. Although Lowery
could have legally ignored the policy, he did not. Cf. Settelen
v. County of Berks, No. 90-5992, 

, at *2
(E.D. Pa. June 28, 1991) (county board of judges explicitly
exempted court-appointed employees from county employee
handbook). It is not disputed that the Clerks understood
that they were covered by the policy. Indeed, the Clerks
drafted a complaint pursuant to the policy and submitted
it to a County official. Based on these actions, we find it
reasonable to infer that the Clerks expected the County to
have the authority to intervene in the situation. This
expectation was solidified when the County convened an
investigative panel and provided the Clerks with counseling
services. Although employee expectations are not
dispositive of employer status, they are relevant to our
analysis. See Armbruster v. Quinn, 

, 1337
(6th Cir. 1983) ("[T]he most important requirement is that
there be sufficient indicia of an interrelationship . . . to
justify the belief on the part of an aggrieved employee that
the [alleged co-employer] is jointly responsible for the acts
of the immediate employer.").
_________________________________________________________________

10. Laura C. Segarra and Debra Napper allege that they were hired,
respectively, by John Bottonare and Phillip Intrieri, both of whom work
for Dauphin County.

11. The LeGrand court refrained from considering the implications of
County input into the hiring process. See LeGrand, slip op. at 8 n.2
("[W]e have no occasion to consider whether the County could be a Title
VII employer in other circumstances when it does have input into the
hiring process.").

                    12
In sum, the precise contours of an employment
relationship can only be established by a careful factual
inquiry. See Magnuson v. Peak Tech. Servs., Inc., 808 F.
Supp. 500, 510 (E.D. Va. 1992) (determining whether a
defendant is a "joint employer" under Title VII requires
"[c]onsideration of all of the circumstances surrounding the
work relationship"), aff'd, 

(4th Cir. 1994); see
also NLRB v. Browning-Ferris Indus. of Penn., Inc., 

, 1121 (3d Cir. 1982) (noting that under the NLRA,
"the question of `joint employer status' is a factual one").
Here, the Clerks alleged facts in their complaint, which, if
true, could allow a jury to find that Dauphin County was
the co-employer of the Clerks. Specifically, the Clerks
alleged that they were covered by the County's personnel
policies, that they were told that they were County
employees, that the County investigated their allegation of
sexual harassment, that they were subject to termination
and/or reinstatement by the County and that two of them
were hired by the County.

By failing to take these allegations into account, and
instead referring solely to the not-yet-implemented dictates
of Pennsylvania law, the district court elevated form over
function. The court could have, of course, looked to state
law as one of many factors in making its determination.
But, again, "a plaintiff's status as an employee under Title
VII can be determined only upon careful analysis of the
myriad facts surrounding the employment relationship in
question." Miller v. Advanced Studies, 

(N.D. Ill. 1986). Indeed, such an analysis is essential when,
as here, the nature of the employment relationship is quite
uncertain.

We decline to speculate as to whether the Clerks will
ultimately succeed in their claim against Dauphin County.
See Scheuer v. Rhodes, 

, 236 (1974) ("The
issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support
the claims."). We merely note that the employment
relationship between the Clerks and the County was
sufficiently ambiguous that the Clerks' claim against the
County should not have been dismissed at the pleading
stage. See DeFranks v. Court of Common Pleas, 68 F.E.P.

                    13
Cases 1306, 1310 (W.D. Pa. 1995) (denying county's motion
to dismiss Title VII complaint filed by a court reporter on
the ground that the court reporter "must . . . be afforded
the opportunity to establish the facts relevant to her
employment"). Indeed, the County's own actions indicate
that even it was unsure about its responsibilities to the
Clerks. For example, the County's initial refusal to
acquiesce in Lowery's retaliation attempt against Vennie
and LeGrand suggests that the County thought that it may
have owed a duty to those employees.12

Finally, we note that insulating the County from any
liability solely out of deference to state law would
undermine the important policies underlying Title VII --
that is, to eradicate employment discrimination through
federal remedies and to ensure compensation for victims.
See Ford Motor Co. v. EEOC, 

, 230 (1982);
Horn v. Duke Homes, Div. of Windsor Mobile Homes, Inc.,

, 605 (7th Cir. 1985). In our view, if the Clerks
can prove the allegations in their complaint and,
consequently, prove that the County was their de facto co-
employer, liability might very well lie with the County as
well as with their employer as defined by Pennsylvania law.

For the foregoing reasons, we reverse and remand for
further proceedings consistent with this opinion.

A True Copy:
Teste:

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

12. Dauphin County could be liable to the Clerks even though it did not
directly engage in the harassing conduct. See Kinnally v. Bell of
Pennsylvania, 

(E.D. Pa. 1990) ("The inaction of
executive and management personnel may serve as a basis for liability
under Title VII even where these high-level employees have played no
direct role in the alleged discrimination."); Taylor v. Jones, 

, 1199 (8th Cir. 1981) (noting that "toleration of a discriminatory
atmosphere alone gives rise to a cause of action"). The Clerks allege that
the County did nothing to protect them from Lowery's harassing conduct
and that the County, as their co-employer, had the duty to do so.

                    14