In Polenik v. Janet Yellen, 2024 WL 1466783 (M.D.Pa. April 4, 2024), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s “quid pro quo” sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.
From the decision:
To allege a quid pro quo sexual harassment claim under Title VII, Polenik must contend: 1) she received unwelcomed sexual advances and 2) her response to the unwelcome sexual advances was subsequently used as a basis for a tangible employment action such as a decision about her compensation or the terms of her employment. Starnes v. Butler Cnty. Ct. of Common Pleas, 50th Jud. Dist., 971 F.3d 416, 427 (3d Cir. 2020). The Parties dispute whether Polenik has sufficiently alleged the second prong, that her complaints about Moser were used as the basis for a tangible employment decision. (Doc. 22, at 18-19; Doc. 26, at 15-16; Doc. 27, at 5-6); Starnes, 971 F.3d at 427. Defendant IRS argues Polenik “simply has not alleged a change in her terms, conditions, or privileges of employment” and therefore has not established a claim for quid pro quo discrimination. (Doc. 22, at 18-19). Polenik claims she demonstrated a change in her employment through her constructive discharge as well as Moser’s threat to put her on a performance improvement plan. (Doc. 26, at 15). Additionally, Polenik states, “Moser’s conduct and retaliation became so ingrained in Plaintiff’s terms and conditions of employment that she was left at the whim of Moser’s desires and intent to keep his actions secret, or Plaintiff was threatened with discipline and harm.” (Doc. 26, at 16).
Polenik has failed to sufficiently allege quid pro quo sexual harassment. First, constructive discharge alone cannot be the basis for a quid pro quo sexual harassment claim. (Doc. 17, ¶¶ 87-93); see Bonenberger v. Plymouth Twp., 132 F.3d 20, 28 (3d Cir. 1997) (supplying constructive discharge alone is insufficient to establish a quid pro quo harassment claim where there is no evidence of a forced resignation); see also Doe v. McDonald’s USA, LLC, No. CV 19-05925, 2022 WL 1793040, at *7 (E.D. Pa. June 2, 2022) (dismissing a quid pro quo harassment claim premised on constructive discharge). Second, the Court agrees with Defendant IRS that unfulfilled threats to take a tangible employment action do not rise to the level of “quid pro quo” harassment. (Doc. 22, at 19); see Ellerth, 524 U.S. at 754 (explaining that unfulfilled threats are better analyzed as a claim for hostile work environment, not quid pro quo harassment). Also, it is unclear from the second amended complaint whether, even if fulfilled, Moser’s threat to put Polenik on a performance improvement plan would have resulted in a change in Polenik’s overall employment.
Based on this, the court concluded that plaintiff failed to sufficiently allege quid pro quo sexual harassment, and dismissed that claim with prejudice.