Manikhi v. Mass Transit Administration

RODOWSKY, Judge. The petitioner, Jacqueline Manikhi (Manikhi), alleges that she was the victim of sexual harassment by a coworker that ³⁴¹ continued over a period of years. Undertaking to assert multiple theories of liability, she sued her employer, two supervisors, three union officials, and the coworker in the Circuit Court for Baltimore City. The issue before us is the legal sufficiency of the allegations in certain counts of an amended complaint.

The employer is the respondent, Mass Transit Administration (MTA), a unit of the Department of Transportation of the State of Maryland. The events with which we are concerned are said to have occurred at night at the MTA facility on Kirk Avenue near Twenty-fifth Street in Baltimore City where buses that are not in service are cleaned, refueled, and parked on a large, open air lot. The alleged harasser is Francisco “Roy” Ovid (Ovid), another respondent. Manikhi and Ovid were classified as “A-Cleaners” of buses; both worked the night shift at the Kirk Avenue facility.

The respondents, Vernon Parsons (Parsons) and Wade Moragne-el (Moragne-el), collectively, the “MTA Officials,” are alleged to have been, respectively, the foreman of the night shift at Kirk Avenue and, as of 1995, the chief superintendent of that facility. Charles Pettus, Ennis Fonder, and Nelson Zollicoffer, the remaining respondents, are officials of Local 1300 of the Amalgamated Transit Union, A.F. of L.-C.I.O., and they are collectively referred to as “the Union Officials.” The complaint seeks compensatory and punitive damages and counsel fees. There is no specific request for prospective relief. The only count that survived dismissal on the face of the pleadings in the circuit court was one charging battery by Ovid.

It was tried to a jury and resulted in a judgment for the defendant, apparently based on Manikhi’s failure to convince the jury that a battery had occurred within the one-year period of limitations for that tort. The Court of Special Appeals affirmed the dismissal. Manikhi v. Mass Transit Admin., 127 Md.App. 497 , 733 A.2d 372 (1999). We granted Manikhi’s petition for certiorari. 356 Md. 495 , 740 A.2d 613 (1999).

This certiorari review concerns Manikhi’s allegations of violations of Title VII of the Civil Rights Act of 1964, as ³⁴² amended, 42 U.S.C. § 20006 , 1 of 42 U.S.C. § 1983 , and of Articles 24 and 40 of the Maryland Declaration of Rights, as well as counts labeled “False Imprisonment” and “Intentional Infliction of Emotional Distress.” When discussing a particular claim, infra, we shall identify the respondents against whom the claim is asserted. Inasmuch as the instant appeal is from the grant of a motion to dismiss for insufficient allegations in a complaint, we would ordinarily proceed directly to summarizing those allegations before determining whether they “contain a clear statement of the facts necessary to constitute a cause of action.” Maryland Rule 2-305. In the instant matter, however, there is a complication. Before we can determine whether the amended complaint states one or more causes of action, we must first determine whether an affidavit by Manikhi, which she purported to incorporate into her amended complaint, forms part of that amended complaint.

I The complaint initially filed by Manikhi was over sixty pages in length, consisting of 241 paragraphs. MTA moved to strike that complaint, arguing that it was “rambling” and constituted “an assemblage of opinions, argument, recitations of evidentiary minutiae, and extraneous allegations.” Commenting that she had been unable to discern a cause of action alleged within the first forty pages of the complaint, the circuit court (Judge Bonita J. Dancy) dismissed, with leave to amend. This dismissal was proper. Maryland Rule 2-303(b) requires that “[e]ach averment of a pleading shall be simple, concise, and direct” and that it “shall contain only such statements of fact as may be necessary to show the pleader’s entitlement to relief.” The rule further requires that a pleading “shall not include argument, unnecessary recitals of law, ³⁴³ evidence, or documents, or any immaterial, impertinent, or scandalous matter.” In Maryland, contrary to federal practice, dismissals for failure to state a claim are not limited to those cases in which “it appears beyond doubt that the plaintiff can prove no state of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 , 78 S.Ct. 99, 102 , 2 L.Ed.2d 80, 84 (1957) (footnote omitted).

See J.A. Lynch, Jr. & R.W. Bourne, Modern Maryland Civil Procedure § 6.1, at 342-47 (1993) (distinguishing between pleading requirements in Maryland and federal practice); P.V. Niemeyer & L.M. Schuett, Maryland Rules Commentary 161 (2d ed.1992) (same); P.M. Sandler & J.K. Archibald, Pleading Causes of Action in Maryland § 1.1, at 2 (2d ed.1991) (same). Instead, when drafting a Maryland circuit court complaint, it is the responsibility of counsel to distill from the client’s narrative and any other relevant information acquired by investigation a concise statement of facts that will identify for the professional reader, be it adverse counsel or the court, the cause of action that is being asserted. That is the essence of “thinking like a lawyer.” In her amended complaint Manikhi reduced the allegations to twenty-five pages and ninety-nine paragraphs. The amended complaint, however, expressly states that it incorporates by reference, as part of the complaint, the matters contained in an affidavit by Manikhi which is attached to the complaint.

That affidavit, consisting of fifty pages and 185 paragraphs, substantially repeats the original complaint and precipitated another round of motions to strike and to dismiss. At the hearing on those motions the circuit court (Chief Judge Robert I.H. Hammerman) described the affidavit as a “regurgitation” of the original complaint and struck the affidavit from the amended complaint. By a footnote in her brief to the Court of Special Appeals Manikhi submitted that the affidavit materials were properly incorporated into the amended complaint. Ruling that Mani-khi’s footnote argument did not address the basis of the circuit ³⁴⁴ court’s ruling — violation of Rule 2 — 303(b)—the Court of Special Appeals considered Manikhi to have waived any issue concerning the striking of the affidavit.

Manikhi, 127 Md. App. at 509 , 733 A.2d at 379 . That court decided the appeal to it on the basis of the amended complaint, unenhanced by the contents of the affidavit. In her brief to this Court, Manikhi asks us to consider that the affidavit forms part of the amended complaint. The circuit court did not err in striking the affidavit from the amended complaint.

Incorporating the subject affidavit into the amended complaint made the amended complaint substantially indistinguishable from the original complaint. We have already held that the original complaint was properly dismissed, with leave to amend. Manikhi chose not to suffer judgment on the original complaint, but to amend. The incorporation stratagem is an effort to have it both ways.

There was no abuse of discretion in striking the affidavit from the amended complaint, inasmuch as the incorporation stratagem seems clearly to have been designed to attempt to circumvent the trial court’s ruling on the original complaint. II The amended complaint consists of an introductory statement followed by separately numbered counts, many of which state additional facts. Each count incorporates the preceding and succeeding allegations. In most instances there is no effort to state when conduct or events occurred.

When setting forth below the material allegations of the amended complaint, we are mindful of the following rules: 1. Well pleaded allegations are accepted as true for purposes of the motion to dismiss, Sharrow v. State Farm Mut. Auto. Ins.

Co., 306 Md. 754, 768 , 511 A.2d 492, 499-500 (1986); 2. The inferences most favorable to the plaintiff are drawn from well pleaded facts, id.; and ³⁴⁵ 3. “[A]ny ambiguity or want of certainty in [the] allegations must be construed against the pleader.” Read Drug & Chem. Co. v. Colwill Constr. Co., 250 Md. 406, 416 , 243 A.2d 548, 555 (1968).

Manikhi was first employed by MTA in 1989. She transferred to the Kirk Avenue facility in 1991. There she was subjected to repeated sexual harassment by Ovid. This abuse continued throughout 1991, 1992, 1994, and 1995.

During 1993 Manikhi transferred to MTA’s Eastern Avenue facility in order to escape Ovid’s conduct. For reasons that are unexplained in the complaint, Manikhi transferred back to Kirk Avenue in 1994. On October 11, 1995, Ovid elbowed Manikhi and called her a “bitch.” From Manikhi’s standpoint this was “[t]he last straw.” On or about October 13, 1995, Manikhi filed a sexual harassment complaint with MTA’s internal equal employment opportunity (EEO) office. That complaint “was resolved in her favor” by the MTA-EEO on December 8, 1995.

Manikhi further alleges: “20. Even after the December 8, 1995, favorable EEO finding for Ms. Manikhi, Defendants did not take any measures to protect her from Defendant Ovid. “21. Ultimately, in order to get away from unlawful conduct against her, in 1996, Ms. Manikhi was forced to transfer to Northwest Division where she finally had to move to a B-Cleaner position, a lower position, which allows her to work alone. “22. In or about August 1996, Defendant Ovid was criminally convicted of committing continuous harassment against [Manikhi] (which was reduced to a [probation before judgment] after he attended counseling), but— as they have from the beginning — Defendants have continually refused to believe [Manikhi] or protect her from Ovid, rather they have done everything they can to protect Defendant Ovid.” The allegations describing Ovid’s sexually abusive conduct are graphic.

They sufficiently allege persistent and unwelcome sexual harassment by Ovid. He is said to have exposed ³⁴⁶ himself, grabbed her breasts, thrust his pelvic area against her in close quarters, importuned her to have sex with him, and threatened to follow her home and have forced sex with her. Ovid and Manikhi are African-American, while Mani-khi’s husband is a native of the Middle East. One of Ovid’s recurring themes was that Manikhi craved sex with a black man.

Principal issues in this case are whether MTA Officials had actual or constructive notice of the sexual harassment prior to October 1995, and whether, after having notice, they failed to protect Manikhi from Ovid. The Court of Special Appeals held that there was no sufficient allegation of notice prior to the formal complaint of October 1995 and that there was no sufficient allegation that the sexual harassment continued after the favorable disposition on December 8 of the MTA-EEO investigation. Manikhi, 127 Md.App. at 516-20 , 733 A.2d at 383-85 . We disagree.

Taking as true the alleged facts set forth below, there was notice to MTA prior to October 1995. Manikhi made “complaints” about Ovid to one Reed Kreider, described as Manikhi’s “prior supervisor” and the predecessor to Moragne-el as chief supervisor at the Kirk Avenue facility. As noted, Moragne-el did not become a supervisor until 1995. The inference is that these “complaints” were of sexual harassment. 2 Further, Manikhi’s “[cjomplaints about Ovid’s unlawful conduct were ignored by MTA supervisors Parsons and Moragne-el.” Inferentially at a time prior to October 13, 1995, Manikhi went to one Saunders, also an alleged foreman, who advised her that she could not file a grievance against Ovid, as another member of the union.

Manikhi told Saunders that “she was tired of Defendant Ovid bothering her and asked if ³⁴⁷ there was anything else she could do to make him leave her alone.” In response Saunders furnished Manikhi with a paper that said “something about [one] employee cannot stop another employee from doing their job.” A factor in determining whether a hostile environment is sufficiently severe or pervasive to alter the conditions of the victim’s employment, and thereby to violate Title VII, is whether the discriminatory conduct ‘“unreasonably interferes with an employee’s work performance.’ ” Faragher v. City of Boca Raton, 524 U.S. 775, 788 , 118 S.Ct. 2275, 2283 , 141 L.Ed.2d 662, 676 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 , 114 S.Ct. 367, 371 , 126 L.Ed.2d 295, 302-03 (1993)). Accordingly, the most favorable inference to Manikhi from the description of the paper furnished to her by her foreman, Saunders, is that Saunders understood that Manikhi was complaining of sexual harassment. Manikhi also avers that on one occasion she was in the room used for lunch breaks and crying as a result of some conduct by Ovid that is not described. Parsons “came in smiling, and jokingly said ‘did your boyfriend ...

Ovid do something to upset you?’ ” Manikhi yelled that Ovid was not her boyfriend and said to Parsons, “ ‘[Y]ou let Ovid do anything he wants to do. I just want him to leave me alone.’ ” The allegation that Parsons, who did not see the cause of Manikhi’s crying, was able to associate it with Ovid, to whom Parsons facetiously referred as Manikhi’s boyfriend, also carries the inference of unwelcome conduct based on Manikhi’s gender. In the same vein is Manikhi’s averment that Parsons, “smiling and grinning,” asked Manikhi if she were “peeping or spying” on Ovid who, Parsons said, had told him that that was the fact of the matter. Manikhi denied her having so acted.

Additional allegations of the amended complaint will be set forth, infra, when we discuss the rulings on certain of the counts which Manikhi raises before us. Ill Manikhi charged MTA with violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, ³⁴⁸ based on “discriminatory harassment/hostile work environment” (Count V) and “retaliation” (Count VI). A Title VII makes it unlawful for an employer “to discriminate against any individual with respect to [her] ... terms, conditions, or privileges of employment, because of such individual’s ... sex.” 42 U.S.C. § 2000e-2(a)(1). In Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 , 106 S.Ct. 2399 , 91 L.Ed.2d 49 (1986), the United States Supreme Court held that “the language of Title VII is not limited to ‘economic’ or ‘tangible’ discrimination,” but that it encompasses protection for employees from hostile environment sex discrimination.

Id. at 64 , 106 S.Ct. at 2404 , 91 L.Ed.2d at 58 . The Court thereby endorsed decisions of federal courts of appeals that had held that a claim of hostile environment sex discrimination is actionable under Title VII. Id. at 66-67 , 106 S.Ct. at 2405 , 91 L.Ed.2d at 59 . To establish a claim for sexual harassment under this provision the plaintiff must prove the following four elements: “(1) the subject conduct was unwelcome; (2) it was based on the sex of the plaintiff; (3) it was sufficiently severe or pervasive to alter the plaintiffs conditions of employment and to create an abusive work environment; and (4) it was imputable on some factual basis to the employer.” See Spicer v. Virginia Dep’t of Corrections, 66 F.3d 705, 710 (4th Cir.1995). “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII’s purview.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 , 114 S.Ct. 367, 370 , 126 L.Ed.2d 295, 302 (1993).

In determining whether the alleged harassment of an employee is sufficiently severe or pervasive to bring it within Title VII’s scope, a court must examine “ ‘all the circumstances, [including] the frequency of the discriminatory conduct, its severity; whether it is physically threatening or ³⁴⁹ humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’ ” Beardsley v. Webb, 30 F.3d 524, 529 (4th Cir.1994) (quoting Harris, 510 U.S. at 23 , 114 S.Ct. at 371 , 126 L.Ed.2d at 302-03 ). In the instant matter the conduct attributed to Ovid clearly satisfies the first three elements of a hostile environment violation of Title VII. For the reasons stated in Part II, supra, the fourth element of the violation is satisfied. Accordingly, Count V states a cause of action.

B To plead “retaliation” in violation of Title VII the plaintiff must allege that “(1) she engaged in statutorily protected expression or activity; (2) she suffered an adverse action by her employer; and (3) there is a causal link between the protected expression and the adverse action.” Knox v. Indiana, 93 F.3d 1327, 1333-34 (7th Cir.1996); see also Munday v. Waste Mgt. of N.A., Inc., 126 F.3d 239 , 242 (4th Cir.1997) (same), cert. denied, 522 U.S. 1116 , 118 S.Ct. 1053 , 140 L.Ed.2d 116 (1998). We shall assume that Manikhi’s filing of an internal complaint was a “protected activity.” Compare Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1353 (11th Cir.1999) (participation in internal investigations is covered by Title VII only when that investigation is “in response to [an EEOC] notice of charge of discrimination” and where the employer is “aware that the evidence gathered in that inquiry will be considered by the EEOC as part of its investigation”), with D.E. Larkin, Participation Anxiety: Should Title VII’s Participation Clause Protect Employees Participating in Internal Investigations, 33 Ga. L.Rev. 1181, 1187 (1999) (arguing that “courts should liberally construe” Title VII because “a restrictive reading of the anti-retaliation provision has a crashing impact on employees filing internal complaints and participating in internal investigations”).

On that assumption, the first ele ³⁵⁰ ment is satisfied. Manikhi seems to rely on what we might call a “constructive demotion” theory to satisfy the second and third elements of a retaliation violation of Title VII. The Court of Special Appeals concluded, however, that Manikhi did not plead a “retaliation” claim under Title VII because she did not plead these two elements, i.e., that “she [did] not allege that the MTA took an adverse employment action against her” and she “fail[ed] to allege a causal connection between a protected activity and an adverse employment action.” Manikhi, 127 Md.App. at 520 -21 & n. 10, 733 A.2d at 385 & n. 10. A “retaliatory action” does not rise to the level of an “adverse employment action” unless it constitutes an “ ‘ultimate employment decision’ ” which may include acts “ ‘such as hiring, granting leave, discharging, promoting, and compensating.’ ” See Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.) (quoting Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir.1995)) (citing Page v. Bolger, 645 F.2d 227, 233 (4th Cir.), cert. denied, 454 U.S. 892 , 102 S.Ct. 388 , 70 L.Ed.2d 206 (1981)), cert. denied, 522 U.S. 932 , 118 S.Ct. 336 , 139 L.Ed.2d 260 (1997). “Actions that do not cause a change in salary, benefits or responsibility generally are not considered adverse employment actions.” A.C. Modjeska, Employment Discrimination Law § 1:04, at 13 (3d ed.1999).

In Munday, 126 F.3d 239 , the Fourth Circuit considered a case where an employee voluntarily resigned after being yelled at repeatedly by her employer and after her employer told other employees to ignore her and to spy on her. Although the employee felt compelled to quit, the court nonetheless held that the employer’s acts did not amount to retaliation “because there was no adverse employment action.” Id. at 243. There, the court said: “We agree with the defendants that, as a matter of law, this scenario does not rise to the level of an adverse employment action for Title VII purposes. In no case in this circuit have we found an adverse employment action to encompass a situation where the employer has instructed employees to ignore and spy on an employee who engaged ³⁵¹ in protected activity, without evidence that the terms, conditions, or benefits of her employment were adversely affected.

See Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745 , 754 (4th Cir.1996) (Hopkins was not discharged from employment, and the comments in question were not and did not result in any adverse employment action); DiMeglio v. Haines, 45 F.3d 790 , 804 & n. 6 (4th Cir.1995) (a reprimand and reassignment may constitute an adverse employment action); Bristow v. Daily Press, Inc., 770 F.2d 1251, 1254 (4th Cir.1985) (the Age Discrimination in Employment Act “affords no protection unless there has been some adverse employment action by the employer. Because Bristow was not actually discharged, he relies on a theory of constructive discharge.”), cert. denied, 475 U.S. 1082 , 106 S.Ct. 1461 , 89 L.Ed.2d 718 (1986); Evans v. Davie Truckers, Inc., 769 F.2d 1012, 1014 (4th Cir.1985) (Title VII retaliation claim requires adverse employment action, which does not obtain where plaintiff voluntarily resigns).” Id. In Jensvold v. Shalala, 829 F.Supp. 131 (D.Md.1993), however, the court considered a case where the employer gave routine tasks to a researcher and denied her opportunities to publish.

The court held that these were not “ ‘interlocutory or mediate decisions,’ ” but rather qualified as adverse employment action. Id. at 136-37 (quoting Page, 645 F.2d at 233 ). Relying on cases from other circuits, the Jensvold court said: “As the D.C. Circuit stated in Passer [v. American Chemical Society, 935 F.2d 322 (D.C.Cir.1991) ], Title VII ‘does not limit its reach only to acts of retaliation that take the form of cognizable employment actions such as discharge, transfer, or demotion.’ 935 F.2d at 331 ; see also Lytle v. Household Mfg., Inc., 494 U.S. 545 , 110 S.Ct. 1331 , 108 L.Ed.2d 504 (1990) (failure to provide job references could state valid Title VII retaliation claim); Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1532 (11th Cir.1990) (unlawful retaliation to persuade new employer to fire employee); Passer [, 935 F.2d] at 331-32 (cancellation of seminar honoring former employee, which humiliated him and made ³⁵² it more difficult for him to procure future employment, actionable under Title VII). “The Court finds that the allegedly retaliatory actions described supra, which include alleged attempts to undermine plaintiffs ability to attain a guest researcher position with Dr. Putnam, are sufficient to support a Title VII retaliation claim. Accordingly, the Court will deny defendant’s motion for summary judgment with respect to plaintiffs retaliation claim.” Id. at 140.

Here, the allegations of Manikhi’s complaint that are critical to her retaliation theory state: “Ultimately, in order to get away from unlawful conduct against her, in 1996, Ms. Manikhi was forced to transfer to Northwest Division where she finally had to move to a B-Cleaner position, a lower position, which allows her to work alone.” These allegations are ambiguous. Although Manikhi alleges that she was “forced to transfer” out of Kirk Avenue in order to escape “unlawful conduct,” no facts are alleged that tie the forced transfer to retaliation for filing the MTA-EEO complaint. The “unlawful conduct” referred to could well be a continuation of the previous unlawful conduct without any causal connection to the internal complaint. This would not be a retaliation violation, but it would be actionable under Count V of the complaint which we have sustained in Part III.A, supra.

Further, even if one could infer that the “unlawful conduct” is retaliatory, that allegation is contradicted by the allegation that Manikhi sought the B-Cleaner position because it “allow[ed] her to work alone.” Construing the ambiguity against the pleader results in the absence of any allegation of adverse employment action. Under that reading the demotion was voluntary. This reading is supported by the ambiguity in the allegations concerning the timing of the transfer and the timing of the demotion that is created by the adverb, “finally.” One fair reading is that Manikhi transferred to the Northwest ³⁵³ Division and, after some period of service as an A-Cleaner, then moved to a B-Cleaner position in order to work alone. Under that reading, there is no adverse employment action and no retaliation.

For these reasons Count VI of the complaint was properly dismissed. IV In Count VII of her amended complaint Manikhi sues Ovid and the Union and MTA Officials, “acting in their individual capacities under color of state law,” for violation of 42 U.S.C. § 1983 . 3 We conclude, for the reasons stated below, that a § 1983 claim is stated only against the MTA Officials. In Davis v. Passman, 442 U.S. 228 , 99 S.Ct. 2264 , 60 L.Ed.2d 846 (1979), the United States Supreme Court held that the “equal protection component of the [Fifth Amendment’s] Due Process Clause ... confers ... a federal constitutional right to be free from gender discrimination,” unless it is substantially related to important governmental objectives. Id. at 235 , 99 S.Ct. at 2271 , 60 L.Ed.2d at 856 .

The Court also held that deprivations of this right “may be redressed by a damages remedy.” Id. at 249 , 99 S.Ct. at 2279 , 60 L.Ed.2d at 865 . 4 See Ritchie v. Donnelly, 324 Md. 344 , 351 n. 2, 597 A.2d 432 , 435 n. 2 (1991) (discussing § 1983 claim alleging gender based discriminatory discharge of deputy sheriff, but noting that legal sufficiency of factual allegations was not challenged). ³⁵⁴ Since Davis , federal courts of appeals have held that a constitutional equal protection claim of gender discrimination may be based on sexual harassment. See Southard v. Texas Bd. of Criminal Justice, 114 F.3d 539 , 550 (5th Cir.1997) (“Sex discrimination and sexual harassment in public employment violate the Equal Protection Clause of the Fourteenth Amendment.”); Cross v. Alabama, State Dep’t of Mental Health, 49 F.3d 1490 , 1507-08 (11th Cir.1995) (affirming as based on sufficient evidence jury’s finding of liability in § 1983 sexual harassment claim); Noland v. McAdoo, 39 F.3d 269, 271 (10th Cir.1994) (“An allegation of sexual harassment is actionable under § 1983 as a violation of the Equal Protection Clause.”); Beardsley v. Webb, 30 F.3d at 529 (noting that “courts have held that intentional sexual harassment of employees by persons acting under color of state law violates the Fourteenth Amendment and is actionable under § 1983”); Gierlinger v. New York State Police, 15 F.3d 32, 34 (2d Cir.1994) (“[A] § 1983 claim may be properly grounded on a violation of the Equal Protection Clause of the Fourteenth Amendment based on sexual harassment in the workplace.”); Bouman v. Block, 940 F.2d 1211, 1230-32 (9th Cir.) (discussing municipal liability under § 1983 sexual harassment claim), cert. denied, 502 U.S. 1005 , 112 S.Ct. 640 , 116 L.Ed.2d 658 (1991); Pontarelli v. Stone, 930 F.2d 104 , 113 (1st Cir.1991) (“[S]ex-based discrimination, including sexual harassment, is actionable under 42 U.S.C. § 1983 as a violation of the equal protection clause.”); Andrews v. City of Philadelphia, 895 F.2d 1469 , 1478 (3d Cir.1990) (“[T]o prove sexual discrimination [under § 1983], a plaintiff must show that any disparate treatment was based upon her gender.”); Volk v. Coler, 845 F.2d 1422, 1431 (7th Cir.1988) (setting forth the standards for “what constitutes sexual harassment and sex discrimination under § 1983 and the equal protection clause”). A principal distinction between a Title VII action and one under § 1983 was addressed in Bohen v. City of East Chicago, Indiana, 799 F.2d 1180 (7th Cir.1986), where the court noted that “[t]he core of any equal protection case is, of course, a showing of intentional discrimination.” Id. at 1186 . Thus, the court reasoned that ³⁵⁵ “the ultimate inquiry is whether the sexual harassment constitutes intentional discrimination.

This differs from the inquiry under Title VII as to whether or not the sexual harassment altered the conditions of the victim’s employment. That standard comes from the [EEOC] regulations promulgated under Title VII. Second, a plaintiff can make an ultimate showing of sex discrimination either by showing that sexual harassment that is attributable to the employer under § 1983 amounted to intentional sex discrimination or by showing that the conscious failure of the employer to protect the plaintiff from the abusive conditions created by fellow employees amounted to intentional discrimination. To make this showing, it is not necessary to show that all women employees are sexually harassed.

Harassment of the plaintiff alone because of her sex is enough.” Id. at 1187 (citations omitted). 5 In a concurring opinion, Judge Posner elaborated on how such a “conscious failure” can amount to the intent-to-discriminate required to prove an equal protection violation. He reasoned that “[a] policy of never responding to complaints about sexual harassment can ... be analogized to a police department’s policy of never responding to complaints of rape. Such a policy would violate the equal protection clause if no effort were made to justify the policy; it would not be saved by pointing out that men sometimes rape other men and that (depending on the specific wording of a state’s rape law) a woman might in principle rape a man.” Id. at 1190 (Posner, J., concurring). See also Trautvetter v. Quick, 916 F.2d 1140, 1149-51 (7th Cir.1990) (discussing Bohen and intent-to-discriminate). ³⁵⁶ Other federal circuit courts of appeals have addressed the issue of intent in the context of a § 1983 sexual harassment-hostile work environment claim against one or more supervisors of the harasser.

The Fifth Circuit concluded in this context “that a supervisory official may be liable under section 1983 if that official, by action or inaction, demonstrates a deliberate, indifference to a plaintiffs constitutionally protected rights.” Southard, 114 F.3d at 551. The court explained that “[t]he ‘deliberate indifference’ standard permits courts to separate omissions that ‘amount to an intentional choice’ from those that are merely ‘unintentionally negligent oversight[s].’ ” Id. (quoting Gonzalez v. Ysleta Indep. Sch.

Dist., 996 F.2d 745 , 756 (5th Cir.1993) (further attribution omitted)). Gierlinger, 15 F.3d 32 , involved the harassment of a female state trooper by her coworkers. She sued her former commander under § 1983. The standard adopted by the Second Circuit was that “liability can be imposed upon individual employers, or responsible supervisors, for failing properly to investigate and address allegations of sexual harassment when through this failure, the conduct becomes an accepted custom or practice of the employer.” Id. at 34.

The standard adopted by the Third Circuit in Andrews, 895 F.2d 1469 , for § 1983 liability on the part of a supervisor for coworker sexual harassment is whether the evidence shows that the supervisor “acquiesced in the sexual discrimination.” Id. at 1479. In Volk, 845 F.2d 1422 , the test applied by the Seventh Circuit was whether the sexual harassment “ ‘occurred at the direction of these officials or with their express consent.’ ” Id. at 1432 (citation and attribution omitted). In Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir.1988), the plaintiff, a woman physician-resident, sued the supervisors of her residency program for sexual harassment perpetrated by male residents not made parties to the suit. The court stated that the plaintiff could meet the requisite element of “discriminatory intent” by showing that the supervisors’ “action or inaction was ‘affirmatively] link[ed]’ to that [harassing] behavior in the sense that it could be characterized ³⁵⁷ as ‘supervisory encouragement, condonation, or acquiescence’ or ‘gross negligence amounting to deliberate indifference.’ ” Id. at 896, 902 (citation omitted; quoting Oklahoma City v. Tuttle, 471 U.S. 808, 828 , 105 S.Ct. 2427, 2436 , 85 L.Ed.2d 791, 804 (1985)).

In reversing summary judgment for the defendants, the First Circuit found that the plaintiff presented sufficient evidence from which to infer this affirmative link based on the supervisors’ “failure ... to investigate and put a stop to the harassment,” and their reliance on the male residents’ version of events despite “good reason to suspect [that their version was a] pretext.” Id. at 903 . A In the instant matter, giving to Manikhi the favorable inferences from the jumbled facts alleged in the amended complaint, there emerges the image of sexual harassment and a hostile workplace environment of which the MTA Officials should have been aware. The theme of Manikhi’s allegations is that the MTA Officials would not protect her and that they did all that they could to protect Ovid. For example, in a conversation between Manikhi and Moragne-el that apparently took place after the October 1995 formal complaint, Moragneel advised Manikhi that he had spoken with Ovid and concluded that Manikhi had been harassing Ovid because Ovid had refused to have sex with Manikhi.

She further avers that, in that same conversation, she hypothesized to Moragne-el that she had been beaten and raped by Ovid in the Kirk Avenue bus parking area and that, bruised in face and body, she reported the incident to Moragne-el. She further hypothesized that Ovid told Moragne-el that there had been sex, but it was consensual. Manikhi avers that Moragne-el responded to the hypothetical by saying that no rape would have occurred. Manikhi also avers that a few days after her formal complaint Moragne-el “yelled” at her in the presence of Ovid and Parsons.

He told her to resolve her differences with Ovid or she would be terminated. When Manikhi responded by telling Moragne-el of the specific types of physical sexual abuse to which she had been subjected by Ovid, Moragne-el again told her that she should reconcile her differences with Ovid or she ³⁵⁸ would be fired. Moragne-el is also alleged to have told Manikhi that he did not care what her coworkers had witnessed and