Konstantopoulos v. Westvaco Corp

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

5-6-1997

Konstantopoulos v. Westvaco Corp
Precedential or Non-Precedential:

Docket 94-7462

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Filed May 6, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 94-7462

SHERLYN KONSTANTOPOULOS and
DIMOS KONSTANTOPOULOS,
Appellants

v.

WESTVACO CORPORATION

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
(D.C. Civil No. 90-00146)

Argued: January 10, 1996

Before: SCIRICA, ALITO and WEIS, Circuit Judges

(Opinion Filed: May 6, 1997)

Diana S. Donaldson (Argued)
Schnader, Harrison, Segal & Lewis
1600 Market Street, Suite 3600
Philadelphia, PA 19103

Counsel for Appellants

Donald E. Reid (Argued)
Andrea L. Rocanelli
Morris, Nichols, Arsht & Tunnell
1201 North Market Street
Post Office Box 1347
Wilmington, DE 19899

Counsel for Appellee
OPINION OF THE COURT

ALITO, Circuit Judge:

Sherlyn Konstantopoulos, a former employee of Westvaco
Corporation, and her husband, Dimos Konstantopoulos,
brought this action against Westvaco, asserting claims for
sexual harassment and retaliation under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well
as claims under Delaware law. The district court held that
the state-law claims were barred by the state Workmen's
Compensation Act, and after a bench trial on the Title VII
claims, the court awarded some, but not all, of the relief
that the plaintiffs sought. The plaintiffs then took this
appeal, but we affirm.

I.

A. The following facts are either undisputed or were
properly found by the district court. Sherlyn
Konstantopoulos (hereinafter "Konstantopoulos") began
work at Westvaco in September 1987. 6/30/94 Dist. Op. at
3. After initially working as a "helper" in the "Finishing
Department," she was promoted in April 1989 to the
position of "helper" in the "Web" Department. Id. at 3-4.
The Web Department contained a single printing press that
used large rolls of paper spliced together to create one
continuous "web" of paper. Id. at 4. Workers in the Web
Department were divided into four "tours," and
Konstantopoulos was initially assigned to "D" tour under
the supervision of foreman Ron Hurley. Id. at 4-5. Mike
Marshall and Ed Peterman were also assigned to this tour.
Id. at 5-6. At the time, Konstantopoulos was the only
woman working in the Web Department, and she was given
little training. Id. at 6. The district court found that
Westvaco "did not in any way prepare its employees - male
and female - to work in an environment where men were
working for the first time with women and where women
were working for the first time with machinery." Id. at 32.

During her time with this tour, "Ed Peterman, rather
than provide substantial assistance to [Konstantopoulos] on

2
[certain] assignments . . . , gave nonresponsive, sarcastic
answers to [Konstantopoulos's] questions `quite a few
times.' " For instance, Konstantopoulos testified that on one
occasion when she asked for Peterman's help with a lid on
a drum, he responded: "Aren't you liberated?" Id. at 8.
Another time, when Konstantopoulos informed Peterman
that there was a malfunction on a particular machine,
Peterman told her to fix the machine herself even though
she had not been trained to do so. Id. Peterman also
threatened on many occasions to send Konstantopoulos
back to the Finishing Department if she could not perform
in the Web Department. Id. Konstantopoulos's evaluations
in late May reflected "below average ratings in several
categories of work, including knowledge, quantity and
quality of work, and judgment and common sense." Id. at
9.

During Konstantopoulos's assignment to "D" tour, Mike
Marshall engaged on several occasions in sexually
suggestive behavior directed toward her. 6/30/94 Dist. Ct.
Op. at 7, 10-11. For instance, one day in April when she
was working about 25 feet away from Marshall, with whom
she had had no prior contact, "Marshall yelled: `Sherri, look
at this.' [Konstantopoulos] looked up, `saw white' and
Marshall's `pants' flaps open'; [Konstantopoulos] turned her
head immediately and covered her eyes. [Konstantopoulos]
continued working and did not discuss this experience with
anyone." Id. at 7. Konstantopoulos testified that in June
1989 Marshall made other similarly suggestive gestures or
remarks on three occasions. See id. at 11.

After these incidents, Konstantopoulos met with Frank
Alcamo, the plant manager, and told him about some of the
things that Marshall and Peterman had done. See 6/30/94
Dist. Ct. Op. at 11. Konstantopoulos then met twice with
other Westvaco management representatives on June 21,
1989. See id. The first meeting was attended by the
personnel manager and the supervisor of the Web
Department, as well as the union president. See id. at 11-
12. Konstantopoulos reiterated the information that she
had given to Alcamo and also complained that her foreman,
Ron Hurley, was not training her. Id. Westvaco
management then met with Marshall and Peterman, who

3
denied the charges. See id. at 12. "Westvaco's `EEOC policy'
was read to both Marshall and Peterman, along with the
admonition that `increasingly severe disciplinary measures'
would be taken if any further sexual harassment
complaints were made against either of them." Id. Later the
same day, Konstantopoulos met again with Westvaco
management and agreed to be transferred to a new tour
commencing the next day, June 22, 1989. See id. at 12-13.

The foreman of Konstantopoulos's new tour was Larry
Cahall, who "was not informed of the circumstances
underlying [Konstantopoulos's] transfer." 6/30/94 Dist. Ct.
Op. at 3. Konstantopoulos experienced harassment during
this tour as well. See id. at 14-16. One day in July 1989,
she found a note that said: "Sherry doesn't need help, she
needs a babysitter." Id. at 14. On approximately July 19,
her locker (and three others) were damaged, and shortly
thereafter she found trash in her locker. Id. at 14. On July
21, she filed a complaint with the Equal Employment
Opportunity Commission, charging that her locker had
been damaged in retaliation for her complaints against
Marshall and Peterman. See id. at 20. On July 24, she
reported to Cahall that her locker had been damaged. Id. at
14. Cahall then advised his supervisor, who issued a
warning that anyone found guilty of vandalism would be
disciplined. Id.

In August, someone wrote a sexually insulting remark
concerning Konstantopoulos on a clipboard that was kept
near a machine in the Web Department. See 6/30/94 Dist.
Ct. Op. at 14-15. Konstantopoulos reported this incident to
Cahall, who said that it would be difficult to identify the
perpetrator and suggested that Konstantopoulos erase the
writing or throw the clipboard away. Id. at 15.

According to Konstantopoulos, during the period from
July 23 to August 28, 1989, a co-worker, Greg Games,
made several sexually insulting or threatening remarks to
her. See 6/30/94 Dist. Ct. Op. at 15. On one occasion, she
said, he grabbed her by the neck and said that he would
like to kill her. Id.

"[Konstantopoulos] did not report any of these incidents
to anyone at Westvaco at the time they occurred." Id. at 15.

4
"[She] testified, however, that she was`upset,' `afraid,'
`hurt,' `humiliated,' and `diminished' by the various
incidents." Id. at 15-16. At the end of every tour,
Konstantopoulos was evaluated by foreman Cahall, and
these evaluations were frequently below average or
unsatisfactory. See id. at 16.

On September 2, 1989, Konstantopoulos gave Cahall a
note from her doctor, Costas A. Terris, advising that she
should be assigned to a "light duty job" for three to four
weeks due to "job and home-related stress." 6/30/94 Dist.
Ct. Op. at 16. Westvaco asked Konstantopoulos for
additional information concerning the type of light-duty
work that she could perform, but she instead supplied a
second note from Dr. Terris, dated September 14, 1989,
which stated that she had been under his care since
August 21, 1989, for the treatment of "severe work induced
stress"; that "[t]here appear[ed] to be some improvement";
but that she should "remain off work for another 3-4
weeks." Id. at 16-17. On September 11, 1989,
Konstantopoulos supplemented her prior EEOC complaint
by reporting, among other things, that a "derogatory sexual
remark" had been written about her on a clipboard and
that foreman Cahall had not taken any action in response.
Id. at 20. She stated that she had suffere d"anxiety and
stress resulting in los[t] time from work and extensive
medical bills." Id.

Konstantopoulos remained out of work until October 30,
1989, when she "returned to work, able and willing." Id. at
17. However, she elected to take a layoff, and she did not
return to work thereafter until she was recalled on April 16,
1990. Id. On December 21, 1989, while Konstantopolous
was laid off, the EEOC issued two right-to-sue letters, and
on March 27, 1990, she commenced this action byfiling a
complaint against Westvaco. See id. at 21. Her complaint
asserted Title VII claims for sexual harassment and
retaliation, as well as a state-law claim for tortious
infliction of emotional distress.

When Konstantopoulos returned to work on April 16,
1990, she was again assigned to the Web Department, with
Ron Hurley as her foreman. 6/30/94 Dist. Ct. Op. at 17.
During her first tour, she broke a piece of machinery and

5
was publicly chastised by Hurley. Id. at 17. During her next
tour (April 23 and 24), she was temporarily transferred to
the Finishing Department because there was not sufficient
work in the Web Department. Id. at 18. None of her co-
workers harassed her during this two-day period. Id.

On April 25, Konstantopoulos was assigned as a helper
in the Web Department on Larry Cahall's tour. 6/30/94
Dist. Ct. Op. at 18. Konstantopoulos informed Cahall of her
apprehension about the assignment, but Cahall was
required by the collective bargaining agreement to transfer
her to the Web Department "because she was the person in
the Finishing Department with the most seniority who had
worked in the Web Department previously." Id. Cahall,
however, assured Konstantopoulos that he would be
available in his office if she needed him, and he also
warned the crew that he would not tolerate any harassment
of her. Id. In addition, Cahall made frequent visits to the
Web Department that day, "entering through a different
door each time, and he spent more time than he normally
would in the area." Id.

Konstantopoulos made no complaints to Cahall that day,
but she testified at trial concerning two incidents involving
co-workers. See id. at 18-19. She stated that Mike Marshall
and Ed Peterman "squinted their eyes . . . and shook their
fist[s]" at her and that another co-worker threw away her
lunch. Id. The district court stated that it was not clear
from the record whether Konstantopoulos's name was on
her lunch bag and that the co-worker who threw away the
bag stated that he had done so accidentally. See id. at 19.

After completing her shift on April 25, Konstantopoulos
left without speaking to anyone from Westvaco. Id. at 19.
The next day, she gave Cahall the following note:

To whom in may concern:

Ms. Konstantopoulos has been under my care for the
past several months for the treatment of severe work
related anxiety. She has now been referred to a local
psychiatrist to continue therapy and has also been
advised to stay off work for an additional 6-8 weeks.

Sincerely,

Costas A. Terris, M.D.

6
Id. Cahall told Konstantopoulos to go home and to call the
personnel manager the next day, and Konstantopoulos
responded: "Am I fired now?" Id. at 20. She never returned
to work at Westvaco. At the time of trial, she had not
worked anywhere else and had not looked for work. Id. at
20.

B. As eventually amended, the complaint in this case
contained six counts. Count I alleged that Westvaco had
violated § 703(a) of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-2(a), by "creating a hostile and
intimidating work environment." App. at 33. Count II
claimed that Westvaco had violated § 703(a) by engaging in
various retaliatory actions against Konstantopolous as a
result of the initial charge of sexual harassment that she
filed with the EEOC in July 1989. Count III asserted a
claim under Delaware law for intentional infliction of
emotional distress, and Count V asserted a claim under
Delaware law for sexual assault and battery. This claim was
based on, among other things, the incident in which Greg
Games grabbed Konstantopolous by the neck and stated
that he would like to kill her. The remaining count, Count
IV, asserted a claim under Delaware law by
Konstantopolous's husband, Dimos Konstantopolous, for
loss of consortium.

In June 1993, the district court granted summary
judgment in favor of Westvaco with respect to the counts of
the complaint (Counts III, IV, and V) that asserted claims
under state law. The court stated that "the facts of record
clearly indicate that the alleged incidents arose out of
[Konstantopoulos's] work relationship with the tortfeasor-
employees as opposed to any affair or personal relationship
originating outside the workplace," and the court therefore
held that the tort claims based on these incidents were
barred by the Delaware Workmen's Compensation Act.
6/4/94 Dist. Ct. Op. at 11. For similar reasons, the court
denied the plaintiffs' motion to amend the complaint to add
a claim of negligent infliction of emotional distress. See id.
at 18. In addition, since Dimos Konstantopoulos's claim in
Count IV was derivative of Counts III and V, the court
granted summary judgment on Count IV as well. See id. at
12 n.4.

7
The remaining Title VII claims were tried without a jury
in August 1993. After the trial, the court found that
Westvaco had violated Title VII by subjecting
Konstantopolous to a discriminatorily hostile or abusive
work environment during the period from April 15 through
August 27, 1989. See 6/30/94 Dist. Ct. Op. at 31-35. The
court observed that while "one can find examples of
conduct more severe than that evidenced of record,"
"[Konstantopolous's] testimony remains essentially
undisputed on the record and evidences some physically
threatening and/or humiliating discriminatory conduct." Id.
at 33-34. The court further concluded that
Konstantopolous's "work performance was directly related
to the discriminatory conduct alleged, i.e., the failure to
train." Id. at 34. The court then stated:

Having reviewed "all the circumstances," and although
the circumstances at bar are not so egregious as in
other cases, the Court concludes that a reasonable
woman would find the conduct evidenced of record to
be sufficiently offensive as to alter the conditions of her
employment.

Id.

The district court further found that Westvaco "knew or
should have known of the harassment and failed to take
proper remedial action" during the period in question.
6/30/94 Dist. Ct. Op. at 34. The court noted that, although
Konstantopolous was transferred to a new tour after the
meetings on June 21, 1989, Westvaco "did nothing to
ensure that [her] new work environment would be any
different from the one she was leaving." Id. at 35. The court
continued:

Plaintiff's new foreman, Larry Cahall, was not informed
of plaintiff's complaints; he, therefore, did not formally
address the matter of additional training for plaintiff on
the machinery and never addressed at all any
additional training for the crew regarding defendant's
policy against sexual harassment. It is clear from the
record that defendant generally failed to provide its
employees with the information and mechanisms
necessary to successful effectuate its policies against

8
discrimination. It is clear from the record as well that
defendants specifically failed to remedy the hostile
work environment encountered by plaintiff during the
period April 15 through August 27, 1989.

Id. As relief for this period, the court awarded back pay but
declined to award front pay because the court found that
Konstantopolous had failed to mitigate damages. See id. at
37-38.

The district court "decline[d] . . . to extend the hostile
work environment characterization past August 1989."
6/30/94 Dist. Ct. Op. at 35. The court noted that
Konstantopoulos was " `ready, willing and able' to return to
work (without any further discussions with defendant
regarding the work environment) by October 1989 and
continued to so affirm through April 25, 1990." Id. The
court therefore concluded that "the incidents alleged by
plaintiff in April 1990 [were] sufficiently removed in time to
be considered independently from those occurring in 1989."
Id. Moreover, the court wrote that those incidents,
"considered independently, were neither severe nor
pervasive enough to have created a hostile work
environment." Id. at 35-36. Finally, the court found, based
in part on Konstantopolous's "apparent attitude in April
1990," that her "inability to work in April 1990 and
thereafter [was] not necessarily related to[Westvaco's]
conduct." Id. at 36. The court also concluded that the
conditions of Konstantopolous's employment in April 1990
were not so intolerable that a reasonable person in her
position would have resigned, and the court therefore held
that she had not been constructively discharged. See id. at
36-37.

Sherlyn and Dimos Konstantopolous then took this
appeal. After briefing and oral argument, we certified two
questions of state law to the Supreme Court of Delaware.
Certification was accepted, and the Supreme Court of
Delaware provided a response that we discuss in part III of
this opinion.

II.

We turn first, however, to Konstantopoulos's Title VII
arguments.

9
A. Konstantopolous first contends that the district court
improperly evaluated the events that occurred during her
second period of employment in isolation and that instead
the court should have viewed them as a continuation of the
harassment that had taken place seven months earlier. We
hold, however, that the district court applied the correct
legal standard and that its conclusion about the duration of
the hostile or abusive environment to which
Konstantopoulos was subjected is supported by the facts.

"[A] plaintiff may establish a violation of Title VII by
proving that discrimination based on sex has created a
hostile or abusive work environment." Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 66 (1986). See also Harris v.
Forklift Systems, Inc., 510 U.S. 17, 21 (1993). "For sexual
harassment to be actionable, it must be sufficiently severe
or pervasive `to alter the conditions of [the victim's]
employment and create an abusive working environment.' "
Meritor Sav. Bank, 477 U.S. at 67 (citation omitted). The
plaintiff must subjectively perceive the environment to be
hostile or abusive, and conditions must be such that a
reasonable person would have the same perception. Harris,
510 U.S. at 21.

The Supreme Court has stated that a determination
whether an environment is hostile or abusive can be made
"only by looking at all the circumstances." Harris, 510 U.S.
at 23. See also Meritor Sav. Bank, 477 U.S. at 68. This
court has similarly stressed that the "totality of the
circumstances" must be examined, Andrews v. City of
Philadelphia, 895 F.2d 1469, 1486 (3d Cir. 1990), and has
"precluded an individualized, incident-by-incident
approach" to making such a determination. West v.
Philadelphia Elec. Co., 45 F.3d 744, 756 (3d Cir. 1995).

In this case, the district court expressly stated that it had
examined the totality of the circumstances. See Dist. Op. at
30, 34. Konstantopoulos argues, however, that the court
merely "paid lip service" to this principle and "then treated
the incident of April 19, 1990 in isolation." Appellants' Br.
at 22. In making this argument, Konstantopoulos focuses
on the court's statement that the events of April 1990 were
" `sufficiently removed in time to be considered
independently from those occurring in 1989 and,

10
considered independently, were neither severe nor pervasive
enough to have created a hostile work environment.' "
Appellants' Br. at 19 (quoting Dist. Op. at 35-36) (emphasis
added in appellants' brief). We do not believe that
Konstantopoulos has fairly interpreted the district court's
opinion. A fairer interpretation, in our view, is that the
district court found that the effects of the harassment that
occurred from April through August 1989 had dissipated by
the time that Konstantopolous returned to work in April
1990; that, therefore, without any new incidents of
harassment, there would be no basis for concluding that
the working environment in April 1990 was hostile or
abusive; and that the few incidents that occurred when
Konstantopolous returned were not sufficiently numerous
or severe to warrant the conclusion that the working
environment remained hostile or abusive. We see no error
in this mode of analysis.

Moreover, we conclude, based on our own examination of
the record, that Konstantopolous was not subjected to a
hostile or abusive working environment when she returned
to work in April 1990.1 Like the district court, we find
several factors that support this conclusion. First, the
passage of nearly seven months between the end of
Konstantopolous's first period of employment and the
_________________________________________________________________

1. The parties disagree regarding the standard of appellate review that
should be applied to the district court's conclusion that Konstantopoulos
was not subjected to a hostile or abusive working environment in April
1990. Konstantopoulos contends that the standard of review is plenary
(Appellant's Br. at 1) while Westvaco argues that the appropriate
standard is clear error. Appellee's Br. at 1. Neither party, however, has
briefed this issue, on which the courts of appeals are divided. Compare
Crawford v. Medina General Hosp., 96 F.3d 830, 835-36 (6th Cir. 1996),
(question of fact reviewed for clear error), and Amirmokri v. Baltimore Gas
& Electric Co., 60 F.3d 1126, 1130 (4th Cir. 1995) (same), with Fuller v.
City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995) (mixed question
subject to de novo review). The Supreme Court "has long noted the
difficulty of distinguishing between legal and factual issues." Cooter &
Gell v. Hartmarx Corp., 496 U.S. 384, 401-02 (1990). See also, e.g.,
Pullman-Standard v. Swint, 456 U.S. 273, 288 (1982). Here, we find it
unnecessary to decide which standard of review to apply because under
either standard we see no ground for reversing the district court's
decision.

11
beginning of the second is significant. This hiatus provided
an opportunity for the lingering effects of the prior incidents
to dissipate. Second, as the district court noted, after
leaving work for medical reasons in August 1989,
Konstantopolous herself stated that she was ready, willing,
and able to return to work by October 1989 "and continued
to so affirm through April 25, 1990," when she eventually
returned. 6/30/94 Dist. Ct. Op. at 35. Thus,
Konstantopolous's conduct suggests that, in her mind, the
effects of the prior incidents had dissipated well before she
actually returned to work. Third, the nature of the incidents
that took place when Konstantopolous returned is
important. Although we can well understand why
Konstantopolous would be troubled by the mute gestures
made by Marshall and Peterman -- squinting their eyes
and shaking their fists -- this incident cannot in itself be
characterized as particularly severe. Moreover, the only
other incident cited by Konstantopoulos -- the throwing
away of her lunch -- seems minor, since it is not clear that
Konstantopolous's name was on the bag, and the offending
co-worker stated that he had thrown it away accidentally.
Id. at 19. Fourth, it is apparent that Westvaco sought to
prevent any harassment of Konstantopoulos when she
returned to work and provided procedures by which any
improper conduct by co-workers could have been remedied.
As previously noted, foreman Larry Cahall warned the crew
that he would not tolerate any harassment of
Konstantopoulos and assured her that he would be
available in his office if she needed him. He also made
frequent, unannounced visits to the Web Department and
"spent more time than he normally would in the area."
6/30/94 Dist. Ct. Op. at 18. Konstantopoulos, however,
made no complaints to Cahall either during or after her
shift, and when she returned to work the next day with a
physician's note stating that she had been advised to stay
off work for six to eight weeks, she commented:"Am I
fired?" All of these factors seem to us to suggest that
Konstantopoulos was not subjected to hostile or abusive
environment when she returned to work in April 1990.

To be sure, there are factors that point in the opposite
direction. One of these is the severity of the conduct of her
co-workers during the period from April through August

12
1989. Although the district court observed that "one can
find examples of conduct more severe than that evidenced
of record," the court added that there was "essentially
undisputed" evidence that Konstantopoulos was subjected
to "some physically threatening and/or humiliating
discriminatory conduct." Another similar factor is
Konstantopoulos's assignment to work under
circumstances that ensured that she would encounter the
co-workers responsible for the prior harassment.

We do not, however, agree with Konstantopolous that her
argument is substantially supported by her assignment to
work under foremen Hurley and Cahall. We recognize that
the prior incidents of abuse by co-workers occurred while
Konstantopoulos was working under the supervision of
these men, but Konstantopoulos did not report any of the
most serious incidents to anyone from Westvaco at the time
when they occurred. See 6/30/94 Dist. Ct. Op. at 7, 10.
Moreover, when Konstantopoulos briefly worked under
Hurley's supervision in April 1990, no alleged acts of sexual
harassment occurred, and when she was again assigned to
work under Cahall's supervision, he took pains to prevent
the recurrence of such abuse. Viewing all of the evidence
bearing on Konstantopoulos's working environment in April
1990, including all of the events that took place during her
prior period of employment, we agree with the district court
that she was not subjected to a hostile working
environment in April 1990.

Konstantopoulos argues that requiring her "to [w]ork
[w]ith [t]he [v]ery [e]mployees [w]ho [h]ad [s]exually
[h]arassed [h]er [s]even [m]onths [b]efore [c]onstituted
[a]dditional [s]exual [h]arassment." Appellants' Br. at 23. To
the extent that Konstantopoulos is simply arguing that her
assignment in April 1990 to work in proximity to Marshall
and Peterman is a factor that must be considered in
determining whether she was subjected to a hostile or
abusive working environment at that time, we readily agree.
As we believe we have already made clear, we view this as
a significant factor weighing in her favor, but after
examining the totality of the circumstances, we conclude
that her reassignment to the Web Department and her
encounter with Marshall and Peterman are insufficient to

13
justify the conclusion that she was subjected to a hostile
working environment when she returned to work.

To the extent that Konstantopoulos goes further and
suggests that requiring her to work in proximity to Marshall
and Peterman constituted illegal sexual harassment per se,
we disagree. As prior decisions of the Supreme Court and
our court make clear, the proper test is whether, under all
the circumstances, a reasonable person would find the
working environment to be hostile or abusive. See Harris,
510 U.S. at 23; West, 45 F.3d at 756; Andrews, 895 F.2d
at 1486. We therefore see no justification for adopting the
per se rule that Konstantopoulos seems to advocate.

Nor do we believe that Cortes v. Maxus Exploration Co.,
977 F.2d 195 (5th Cir. 1992), or Ellison v. Brady, 924 F.2d
872 (9th Cir. 1991), on which Konstantopolous relies,
supports such a per se rule. In Cortes, an employee, Cortes,
was subjected to severe and persistent sexual harassment
by her immediate supervisor, Acero. See 977 F.2d at 197-
98. Although Cortes complained about this harassment to
her employer's human resources manager, he did nothing
to rectify the situation. Id. Eventually, Cortes was
transferred to another department, but Acero continued to
harass her. Id. Cortes again complained to the human
resources manager, but he dismissed her complaints. Id.
Eventually, Cortes was informed that she would have to
work under Acero's immediate supervision or resign. Id.
Although she told the human resources manager that she
was afraid to work for Acero, the human resources manager
replied that there was nothing that he could do. Id.

Faced with this record, the Fifth Circuit sustained the
district court's finding that the employer, Maxus, had
subjected Cortes to a hostile or abusive environment. The
court wrote:

Even in light of the strong evidence that Acero had
sexually harassed Cortes when she was under his
supervision and that when given the opportunity, he
had continued to do so even after she was transferred
out of his department, Maxus transferred Cortes to this
sexually abusive environment. When Cortes expressed
her fears about accepting the transfer, Maxus refused

14
to take any remedial measures to protect her. . . . We
find no clear error in the district court's conclusion
that these acts amounted to sexual harassment within
the meaning of Title VII.

Id. at 199.

It is clear to us that Cortes does not stand for the
proposition that it is always illegal for an employer to
require a prior victim of sexual harassment to return to
work in the company of co-workers responsible for the prior
harassment. Rather, Cortes, in our view, merely held that
the employer in that case violated Title VII by requiring the
employee to work in an environment where sexual
harassment seemed almost certain and by refusing to take
any remedial measures.

Ellison provides somewhat stronger support for
Konstantopolous's argument, but we do not interpret it as
adopting a per se rule. In that case, a male IRS agent (Gray)
persistently expressed a romantic interest in a female agent
(Ellison), who did not reciprocate his sentiments and found
his conduct to be "weird[ ]," "crazy" and "frighten[ing]."
Ellison, 924 F.2d at 874. After Ellison complained to their
supervisor, Gray was temporarily transferred from the San
Mateo, California, office to the San Francisco office, but he
was permitted to return to San Mateo six months later. Id.
at 874. The Ninth Circuit held that "Gray's conduct, as
alleged by Ellison, was sufficiently severe or pervasive to
alter the conditions of Ellison's employment and create an
abusive working environment." Id. at 876. Turning to the
question whether the Treasury Department had taken
sufficient remedial action to shield it from liability under
Title VII, the Ninth Circuit concluded that it was unable to
determine based on "the scant record" before it "whether a
reasonable woman could conclude that Gray's mere
presence at San Mateo six months after the alleged
harassment would create an abusive environment." Id. at
883. The court stated that it did not "know how often
Ellison and Gray would have to interact at San Mateo" and
added that "the facts concerning the government's decision
to return Gray to San Mateo" warranted further
exploration. Id.

15
We do not interpret Ellison as adopting a per se rule.
Rather, the court merely held that, based on the facts in
the record, it was unable to determine whether the
employer's decision to permit the harasser to return to the
same office as the victim created an environment that
violated Title VII. We recognize that the Ellison court stated
that it believe that "in some cases the mere presence of an
employee who has engaged in particularly severe or
pervasive harassment can create a hostile working
environment." 924 F.2d at 883. Even this statement,
however, does not endorse a blanket rule. Rather, it merely
states that in some cases (i.e., those involving "particularly
severe or pervasive harassment") the mere presence of the
harasser "can" be enough to create a hostile environment.

In sum, having considered the totality of the
circumstances, we agree with the district court that,
although Konstantopolous was subjected to a hostile and
abusive working environment during her first period of
employment with Westvaco, she was not subjected to such
an environment during her brief second period of
employment.

B. In light of our conclusion that no hostile work
environment existed at the time that Konstantopoulos
voluntarily left Westvaco's employ, Konstantopoulos cannot
show the necessary predicate to maintain a constructive
discharge claim, specifically, that there were "conditions of
discrimination" so intolerable that a reasonable person
would have resigned.2 Goss v. Exxon Office Sys. Co., 747
_________________________________________________________________

2. Even if we had not reached this conclusion, we would reject
Konstantopoulos's argument that the district court erroneously rejected
her constructive discharge claim "based on what it apparently believed to
be additional requirements specified in Clowes v. Allegheny Valley Hosp.,
991 F.2d 1159, cert. denied, 114 S.Ct. 441 (1993)." Appellants' Br. at 26.
After properly applying the Goss standard for constructive discharge,
6/30/94 Dist. Ct. Op. at 36-37, the district court observed that there are
a list of factors that are "commonly cited by employees who claim to
have been constructively discharged." Id. Contrary to Konstantopoulos's
assertion, the district court did not "procee[d] impermissibly to impose
those factors as additional requirements for a constructive discharge
claim." Appellants' Br. at 28. The court merely used these factors as an
illustrative guide in exactly the same manner as this court used those

16
F.2d 885, 888 (3d Cir. 1984). The district court therefore
properly rejected her constructive discharge claim.

C. Konstantopoulos next contends that the district
court abused its discretion in excluding the testimony of
her expert psychological witness, Jay Ann Jemail, Ph.D.,
based on trial counsel's failure to comply with relevant
pretrial discovery orders. "The trial court's exclusion of
testimony because of the failure of counsel to adhere to a
pretrial order will not be disturbed on appeal absent a clear
abuse of discretion." Semper v. Santos, 845 F.2d 1233,
1238 (3d Cr. 1988). In determining whether a district court
abused its discretion, we consider:

(1) the prejudice or surprise in fact of the party
against whom the excluded witnesses would have
testified, (2) the ability of that party to cure the
prejudice, (3) the extent to which waiver of the rule
against calling unlisted witnesses would disrupt the
orderly and efficient trial of the case or other cases in
the court, and (4) bad faith or wilfulness in failing to
comply with the district court's order.

Meyers v. Pennypack Woods Home Ownership Ass'n, 559
F.2d 894, 904-905 (3d Cir. 1977). See also Beissel v.
Pittsburgh and Lake Erie R.R. Co., 801 F.2d 143, 150 (3d
Cir. 1986) cert. denied, 479 U.S. 1088 (1987). We have also
stated that "the importance of the excluded testimony"
should be considered. Meyers, 559 F.2d at 904. "[T]he
exclusion of critical evidence is an `extreme' sanction, not
normally to be imposed absent a showing of wilful
deception or `flagrant disregard' of a court order by the
proponent of the evidence." Id. at 905 (quoting Dudley v.
South Jersey Metal, Inc., 555 F.2d 96, 99 (3d Cir. 1977).

Applying these standards, we hold that the district court
properly exercised its discretion in excluding Dr. Jemail's
_________________________________________________________________

factors in Clowes, determining that an absence of strong evidence for
any of the factors supported a finding that the plaintiff was not
constructively discharged. Compare Clowes, 991 F.2d at 1161 and
6/30/94 Dist. Ct. Op. at 36-37. The district court therefore used the
proper legal standard.

17
testimony. Two factors strongly support the district court's
decision. First, this is clearly a case that involves a
" `flagrant disregard' of a court order by the proponent of
the evidence." Meyers, 559 F.2d at 905. As noted, the initial
complaint in this case was filed in March 1990, and the
complaint was finally amended in March 1991. The cutoff
date for expert witness discovery was extended at least
three times before a final cutoff date of January 1992 was
set. Nevertheless, Dr. Jemail did not see Konstantopoulos
until January 1993, one year after the cutoff date, and
plaintiffs' trial counsel did not advise opposing counsel that
Dr. Jemail would be called as an expert witness until a
pretrial conference on July 29, 1993, long after Dr. Jemail
was first consulted and approximately three weeks prior to
the scheduled trial date. Even then, plaintiffs' trial counsel
did not fully comply with his discovery obligations relating
to Dr. Jemail's testimony, and indeed he had not fully met
those obligations when the district court held, on August
13, 1993, that Dr. Jemail's testimony would be excluded.
Based on these facts alone, we are satisfied that this case
qualifies as one involving flagrant disregard of the pretrial
order.3

Second, we are satisfied that Westvaco was prejudiced.
The district court so found, see 8/13/92 Order at ¶ 12, and
we accept that finding. As noted, plaintiffs' trial counsel did
not advise Westvaco that he intended to call Dr. Jemail
until approximately three weeks before the scheduled trial
date. Another week elapsed before plaintiffs' trial counsel
revealed the substance of Dr. Jemail's expected testimony.
See App. 53-56. Counsel listed only two dates -- on August
13 after 3 p.m. and August 17, after 4 p.m. -- when Dr.
Jemail would be available for deposition, and no report
written by Dr. Jemail was ever turned over because,
_________________________________________________________________

3. Because we find that this case involves a "flagrant" violation of pretrial
order, we do not reach the question whether it also involved "willful
deception." See Meyers, 559 F.2d at 905 (evidence should be excluded
only in cases involving flagrant disregard of a court order or willful
deception). As to the question of willfulness in this case, see footnote 7,
infra.

18
counsel stated, Dr. Jemail did not prepare one. Under these
circumstances, the finding of prejudice was justified.4

The district court did not make findings with respect to
several of the other factors mentioned in Meyers -- the
importance of Dr. Jemail's testimony, trial counsel's good or
bad faith, Westvaco's ability to cure the prejudice, and the
extent to which waiver of the rule against calling unlisted
witnesses would have disrupted the orderly and efficient
trial of this or other cases.5 However, it is apparent that
none of these factors weighs heavily against the exclusion
of Dr. Jemail's testimony, and therefore a remand for
further findings is not necessary. With respect to the
importance of Dr. Jemail's expected testimony, it appears
that some, but not all, of her testimony was covered by the
testimony of another plaintiffs' witness, Dr. Antonio Sacre,
_________________________________________________________________

4. We are likewise satisfied that Westvaco was surprised when, 18
months after the extended discovery cutoff and approximately three
weeks before trial, plaintiffs' trial counsel informally notified it during a
pretrial conference that he intended to call a previously undisclosed
expert witness. Konstantopoulos argues:

Westvaco could not have been genuinely surprised by the addition
of Dr. Jemail as a witness. Not only did Westvaco know that Ms.
Konstantopoulos' psychological condition and the cause of that
condition were hotly contested issues in the case, but had also
known since January 1993 that Ms. Konstantopoulos was seeing a
new psychologist.

Appellants' Br. at 41. This is surely a strange argument.
Konstantopoulos would have us believe that, prior to July 29, 1993, her
trial counsel did not know that he would seek to call Dr. Jemail as an
expert witness and thus should be excused for failing to disclose that
intention any sooner, id. at 37-38, but at the same time Konstantopoulos
argues that Westvaco should have guessed well before July 29, 1993,
that her trial counsel would have to and would attempt to add a
previously undisclosed psychological expert witness. Konstantopoulos
cannot have it both ways.

5. A trial court's failure to state on the record its reason(s) for excluding
experts is not necessarily an abuse of discretion. See Sowell v. Butcher
& Singer, Inc., 926 F.2d 289, 302 (3d Cir. 1991). When a trial court does
not state its reasons for exclusion, the reviewing court may apply the
Meyers factors to the trial court's decision to determine if the court
abused its discretion. Beissel, 801 F.2d at 150-51.

19
the psychiatrist who treated Konstantopoulos.6 We do not
regard this factor as particularly favorable to either side in
this case.

We are likewise convinced that the issue of trial counsel's
good or bad faith cannot weigh significantly in
Konstantopoulos's favor.7

The parties dispute whether Konstantopoulos's trial
counsel promptly notified Westvaco after making the final
decision to call Dr. Jemail as an expert witness. Westvaco
contends that Konstantopoulos's trial counsel made that
decision months before he eventually notified Westvaco at
the July 29, 1993, pretrial conference.8 By contrast,
_________________________________________________________________

6. Konstantopoulos maintains that Dr. Jemail would have testified to "(1)
the nature of [plaintiff's] emotional problems; (2) the cause of those
problems (i.e., the sexual harassment); (3) [plaintiff's] therapeutic needs;
(4) the results of the MMPI-2; and (5) the questionable validity of the
testing done by [defendant's experts]." Appellants' Br. at 33. However,
the first three subjects were covered in the testimony of Dr. Sacre. The
only subject not covered by plaintiff's experts were the results and
validity of the MMPI-2 test. Konstantopoulos sought to impeach the
credibility of defendant's expert, Dr. Raskin, by casting doubt on the
applicability and reliability of the MMPI-2. Dr. Raskin did not refer to the
test by name on direct examination, but indicated that some of his
conclusions were based on psychological testing.
7. The district court made no finding regarding trial counsel's good or
bad faith. On appeal, Konstantopoulos notes that Westvaco urged the
district court to find that her trial counsel acted in bad faith but that the
district court failed to do so. She then suggests that the district court
rejected the proposition that her trial counsel was guilty of bad faith.
See, e.g., Reply Br. at 12. We disagree with this characterization of the
district court's order excluding Dr. Jemail's testimony. Making no finding
on the question of bad faith (which is what the district court did) is quite
different from finding that there was no bad faith.

8. Relying on time sheets submitted by Konstantopoulos's trial counsel
in connection with his application for attorney's fees, Westvaco contends
that trial counsel prepared a subpoena for Dr. Jemail and paid her bill
in February 1993. If it were necessary for purposes of this appeal to
determine when trial counsel decided to call Dr. Jemail as an expert
witness, we would remand this case to the district court for an
exploration of the significance of these facially troubling records, which
were not called to the attention of the district court in relation to the
question of trial counsel's alleged bad faith. However, because we do not
think that it is necessary to make this determination, we do not find a
remand to be essential.

20
Konstantopoulos argues that her trial attorney did not
make that final decision until shortly before the pretrial
conference. However, Konstantopoulos does not dispute the
fact that trial counsel had been preparing for the possibility
of calling Dr. Jemail as a witness for some months.9 Yet
despite this, despite the fact that the cutoff for expert
discovery had passed more than a year earlier, and despite
the fact that the trial date was rapidly approaching, trial
counsel delayed notifying Westvaco. It seems clear that trial
counsel was, at best, attempting to gain a tactical
advantage by delaying notification of Westvaco until the last
possible date that could plausibly be claimed as the date on
which the final decision about calling Dr. Jemail had been
made. This approach was not commendable, and the
intentions of Konstantopoulos's trial counsel therefore
cannot possibly weigh appreciably in her favor.10
_________________________________________________________________

9. Konstantopoulos's trial attorney admitted that, as of January 1993,
Jemail was being considered for "possible testimony." App. 53.
Konstantopoulos's counsel asserted that in January 1993, he "did not
know whether [Jemail] was seen for purposes of testimony or treatment
or both." Id.
10. Konstantopoulos tries to characterize her trial counsel's failure to list
Jemail and disclose the substance of her testimony and test results as
"excusable delay," akin to the "lack of diligence" that was held not to
constitute bad faith in In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 793
(3d Cir. 1994), cert. denied, General Electric Co. v. Ingram, 115 S.Ct.
1253 (1995). That case is inapposite. There, the expert had been
identified and the substance of most of his testimony had been disclosed
prior to the discovery date. The plaintiff's delay in providing part of the
testimony after substantial compliance was held to be excusable.

The instant case is more closely analogous to Sowell v. Butcher &
Singer, Inc., 926 F.2d 289 (3d Cir. 1991). Several years before trial, the
plaintiff in that case had been served with interrogatories, requesting the
identification of experts and a summary of the substance of their
testimony. See id. at 301. The plaintiff failed to list the experts until
shortly before trial and did not indicate what the substance of their
testimony would be. See id. "The record include[d] a detailed exchange of
correspondence between the parties' attorneys documenting the refusal
of [plaintiff's] counsel to make his experts available or to supply
information regarding the substance of their testimony." Id.

Here, as in Sowell, "Counsel . . . failed to satisfy the obligations
imposed upon him by the rules of discovery and cannot now be heard to
complain that the district court erred in failing to admit expert
testimony." Sowell, 926 F.2d at 302.

21
We are unmoved by Konstantopoulos's argument that
Westvaco could have "cured" the prejudice resulting from
trial counsel's late designation of Dr. Jemail as an expert
witness. The thrust of Konstantopoulos's argument is that
Westvaco, by means of sufficient last-minute scrambling,
could have managed to prepare to meet Dr. Jemail's
expected testimony at trial. Even if this is true, however,
Konstantopoulos would have gained a valuable tactical
advantage by requiring Westvaco to focus its litigation
resources on these efforts in the last days before trial.
Finally, even if we assume that permitting Dr. Jemail to
testify would not have disrupted the commencement or the
progress of the trial in this case, that factor, either alone or
in conjunction with the other relevant factors, would not
persuade us that the district court's decision to exclude Dr.
Jemail's testimony constituted an abuse of discretion.

In sum, after examining all of the factors identified in our
prior cases, we hold that the district court did not abuse its
discretion, and we therefore sustain its decision.

III.

The final question that we must address is whether the
district court correctly held that the plaintiffs' state-law
claims were barred by the Delaware Workmen's
Compensation Act. The Act restricts an employee's ability to
assert a tort claim against his or her employer for "personal
injury or death by accident arising out of and in the course
of employment." Del. Code Ann. tit. 19, § 2304 (1996).
However, the Act does not prevent an employee from
recovering in tort for "any injury caused by the wilful act of
another employee directed against the employee by reasons
personal to such employee and not directed against the
employee as an employee or because of the employee's
employment." Del. Code Ann. tit. 19, § 2301(15) (1996).

As previously noted, the plaintiffs' amended complaint
asserted three tort claims under Delaware law. Count III,
which asserted a claim for intentional infliction of emotional
distress, alleged that Westvaco and its agents and
employees intentionally inflicted acts of sexual harassment
and retaliation on Konstantopoulos. Count V, which

22
asserted a claim for sexual assault and battery, alleged that
Westvaco was liable principally as a result of the incident in
which Konstantopoulos's co-worker Greg Games violently
grabbed her by the neck and stated: "I'd like to kill you."
Finally, Count IV asserted a derivative claim for loss of
consortium on behalf of Konstantopoulos's husband.

The district court held that all of these claims were
barred by the Delaware Workmen's Compensation Act. The
plaintiffs argued that these claims fell within the "personal
dispute exception" contained in Del. Code Ann. tit. 19,
§ 2301(15), but the district court disagreed. The court
wrote:

[T]here is no evidence of a pre-existing private affair or
dispute between plaintiff and any of her co-workers. To
the contrary, the record is replete with evidence that
any alleged misconduct occurred solely as a result of
the tortfeasor-employees' relationship with the plaintiff
at work. . . . [T]he tortfeasors' actions were related to
the duties of their jobs; the duties of the tortfeasors
required them to work together or to be in close
proximity or to communicate with the plaintiff; the
incidents were stimulated by duties, assignments, or
conditions of work; and the incidents resulted from the
fact that plaintiff was an employee of this particular
employer. Accordingly, the facts of record clearly
indicate that the alleged incidents arose out of the
plaintiffs' work relationship with the tortfeasor-
employees as opposed to any affair or personal
relationship originating outside the workplace.

6/4/93 Dist. Op. at 11.

On appeal, the plaintiffs argue that the "personal dispute
exception" does not apply when an employee sexually
harasses a co-worker for purely personal reasons. The
plaintiffs contend that the record bears "no evidence as to
why Ms. Konstantopoulos' co-workers . . . assaulted her"
and that "[o]ne definite possibility was that they were
motivated by personal bias against Ms. Konstantopoulos as
a woman." Appellant's Br. at 49. Accordingly, the plaintiffs
maintain, summary judgment on the state-law claims was
improper.

23
Because we found no decision of the Supreme Court of
Delaware that definitively addressed the state-law issues
raised in this appeal, we certified two questions of state law
to that court pursuant to Article IV, Section 11(9) of the
Delaware Constitution and Delaware Supreme court Rule
41.11 The Delaware Supreme Court accepted certification
and provided responses that, in our view, require
affirmance of the district court's decision.

Our certification included the following query:

Are an employee's claims against her employer for
intentional infliction of emotional distress and sexual
assault and battery caused by acts of sexual
harassment performed by co-employees arising out of
and in the course of employment, and not based on
any events occurring outside the course of
employment, barred by the Delaware Workmen's
Compensation Act, Del. Code Ann. Tit. 19, § 2301 et
seq. (1985), or may they be included in the exception
to the Act found at Del. Code Ann. Tit. 19
§ 2301(15)(b)?

In response, the Delaware Supreme Court concluded that
under the Act, "an employee's claim against her employer
for personal injuries sustained during the course of
employment, even if the offending conduct was of a sexual
nature, is limited to the compensation provided by the Act."
_________________________________________________________________

11. The certified questions were:

(1) Are an employee's claims against her employer for intentional
infliction of emotional distress and sexual assault and battery
caused by acts of sexual harassment performed by co-employees
arising out of and in the course of employment, and not based on
any events occurring outside the course of employment, barred by
the Delaware Workmen's Compensation Act, Del. Code Ann. Tit. 19,
§ 2301 et seq. (1985), or may they be included in the exception to
the Act found at Del. Code Ann. Tit. 19 § 2301(15(b)? Does the
applicability of this exception depend in whole or in part on the
subjective intent of the employee or employees who engage in the
harassment?

(2) If these claims are included in the exception found at Del. Code
Ann. tit. 19 § 2301(15)(b), may the employer be held liable based on
the doctrine of respondeat superior?

24
Konstantopoulos v. Westvaco Corp., 1996 WL 580354 (Del.
Supr. Oct. 2, 1996) at 1. The court went on to conclude
that the "personal dispute exception" contained in Del.
Code Ann. tit. 19, § 2301(15)(b) does not apply under the
facts set out in the certified question. Konstantopoulos,
1996 WL 580354 at 2. The court reasoned that the
"personal dispute exception" is "restricted to an injury that
is caused by conduct with origins outside of the work
place." Id. Since our certified question referred to conduct
arising "out of and in the course of employment" and "not
based on any event occurring outside of the workplace," the
court concluded that "[t]his type of conduct clearly does not
fall within the exclusion provided for an act `. . . not
directed against an employee as an employee or because of
the employee's employment.' " Id. (quoting Del. Code Ann.
tit. 19, § 2301(15)(b) (emphasis added in Del. Sup. Ct. Op.).
The court further observed that its interpretation of the act
was compatible with its purpose and that "[i]t would not be
appropriate for [the court] to create a new exception . . . for
sexual harassment claims." Id. at 3. In view of the Delaware
Supreme Court's responses, it is apparent that the district
court's disposition of the plaintiffs' state-law claims must
be affirmed.

For the reasons explained above, we affirm the decision
of the district court.

A True Copy:
Teste:

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

25