Mandel v. M & Q Packaging Corp.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 11-3193

SHANNON J. MANDEL,

Appellant

v.

M&Q PACKAGING CORP.,

A Subsidiary of M&Q Plastic Productions, Inc.

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3-09-cv-00042)

District Judge: Honorable A. Richard Caputo

Argued on April 26, 2012

Before: GREENAWAY, JR., ROTH and TASHIMA*,

Circuit Judges

(Opinion filed: January 14, 2013)

Jeffrey R. Elliott, Esquire

Joan E. London, Esquire (Argued)

Michael M. Monsour, Esquire

Kozloff Stoudt

2640 Westview Drive

P.O. Box 6286

Wyomissing, PA 19610

Counsel for Appellant

Catherine T. Barbieri, Esquire (Argued)

Steven K. Ludwig, Esquire

Fox Rothschild

2000 Market Street, 20th Floor

Philadelphia, PA 19103

Counsel for Appellee

*Honorable A. Wallace Tashima, Senior United States

Circuit Judge for the Ninth Circuit, sitting by designation.

2

Gail S. Coleman, Esquire (Argued)

Equal Employment Opportunity Commission

Room 5SW24L

131 M Street, N.E.

Washington, D.C. 20507

Counsel for Amicus in support of Appellant

OPINION

ROTH, Circuit Judge:

Shannon J. Mandel appeals the final judgment of the

District Court entered on July 25, 2011, following the grant of

summary judgment in favor of defendant M&Q Packaging

Corporation. For the reasons that follow, we will affirm the

judgment of the District Court with respect to the retaliation

claims, the PHRA claims, and the Title VII sex discrimination

claims. We will reverse the District Court’s grant of

summary judgment on the Title VII hostile work environment

and constructive discharge claims and remand the case for

further proceedings in accordance with this opinion.

I. BACKGROUND

A. Factual Background

On October 25, 1996, Shannon J. Mandel was hired as

an Inside Sales and Customer Relations Coordinator by M&Q

Packaging Corporation (M&Q), which manufactures and sells

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packaging film. Mandel claimed that, throughout her

employment from October 25, 1996, to May 23, 2007, she

was sexually harassed and discriminated against by male

managers, supervisors, and owners in alleged incidents such

as being referred to as “woman,” “darling,” “the woman,”

“fluffy,” “missy,” “hon,” and “toots”; having her body,

clothing, and physical appearance commented on; being told

that she was “foolish not to use [her] assets”; being told by

Systems Manager David Benetz, when she asked for

directions to a meeting at corporate headquarters, that “[f]or

you . . . the meeting will start at my house tonight and we will

conclude our part of it tomorrow morning – maybe . . . we

may need to postpone the meeting with everyone else a few

hours to finish up . . .”; being told by Quality Manager Harold

Brenneman that he fantasized about her while he was having

sex with his wife; being told in a review by Managing

Director (and later President & COO) Michael Schmal that

she was “too female” and “too emotional”; being solicited for

dates by Vice President of Sales Curt Rubenstein even after

she told him she was not interested; being told to clean the

bathroom and make coffee when male employees were not

asked to perform such tasks; and being paid less and given

less vacation time than a male manager.

Mandel reported to George Schmidt from October 25,

1996, until 1998 or 1999, to Vice President Jack Menges until

February of 2006, and finally to Schmal until May 23, 2007.

Mandel contends that Schmal, Department Manager Larry

Dahm, Plant Manager Ernest Bachert, and Human Resources

Manager Jack Conway also reported to Menges during the

same time period and were her peers. Neither Menges nor

Schmidt ever harassed Mendel.

4

On April 6, 2007, during a meeting regarding sample

orders, Bachert became angry, repeatedly called Mandel a

“bitch,” and screamed “shut the fuck up.” Bachert had

previously referred to Mandel as a “bitch,” both in and out of

her presence. As a result of the meeting, Mandel resigned on

May 23, 2007, by submitting a letter with two weeks’ notice

to Schmal. When Mandel resigned from M&Q, she accepted

a position with Yuengling.

In her resignation letter, Mandel did not complain of

harassment or discrimination, apparently because she was

concerned she would be denied her vacation time. She did,

however, refer to the Employee Handbook. The Employee

Handbook included an Equal Employment Opportunity

Policy, which informed employees that they should contact

the personnel manager—in this case, Conway—if they felt

they were being discriminated against. The Employee

Handbook also included an Open Door policy, which directed

employees to discuss any issues first with their supervisor and

then with the personnel manager. Mandel testified in her

deposition that she understood the policies in the Employee

Handbook but felt uncomfortable going to Conway or Schmal

with her complaints. Conway testified in his deposition that

other than giving each employee a copy of the Employee

Handbook, there was no training regarding discrimination or

sexual harassment.

Although Mandel complained to Schmidt about being

told to make coffee, she did not complain to her supervisors

about other alleged incidents of harassment or discrimination.

Mandel occasionally used profanity and sent emails

containing sexual humor. Mandel also called Bachert “gay”

on a few occasions, apparently as a joke in reference to

5

jealous husbands who claimed Bachert made advances to

their wives. Mandel was never disciplined during her

employment with M&Q.

B. Procedural History

Mandel completed Equal Employment Opportunity

Commission (EEOC) questionnaires (dated July 17, 2007),

which were received by the EEOC on September 13, 2007.

On the questionnaires, Mandel checked boxes indicating “I

want to file a charge.” The EEOC processed the forms and

issued a Charge of Discrimination (Charge) on December 14,

2007. That same day, Mandel requested that the Charge be

dual filed with the Pennsylvania Human Relations

Commission (PHRC). On October 21, 2008, the EEOC

issued a Dismissal and Notice of Rights, indicating “the

EEOC is unable to conclude that the information obtained

establishes violations of the statutes” and informing Mandel

of her right to sue within 90 days of receipt.

On January 9, 2009, Mandel filed a Complaint against

M&Q, alleging gender-based discrimination, sexual

harassment, and retaliation in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Counts I

and II), and the Pennsylvania Human Relations Act (PHRA),

43 Pa. Cons. Stat. § 951 et seq. (Count III), as well as

intentional infliction of emotional distress in violation of

Pennsylvania law (Count IV).

On August 18, 2009, the District Court partially

granted M&Q’s motion to dismiss pursuant to Fed. R. Civ. P.

12(b)(6). The District Court found that Mandel had failed to

exhaust her administrative remedies because she indicated on

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the EEOC questionnaires that she did not take action for fear

of reprisal and thus any claim of retaliation was not

encompassed in the EEOC Charge. The District Court also

found that the allegations did not constitute the type of

“clearly disparate and ultra extreme conduct” actionable

under an intentional infliction of emotional distress claim.

The District Court, therefore, dismissed Counts I, II, and III

to the extent they alleged claims of retaliation and dismissed

Count IV in its entirety.

On July 25, 2011, the District Court granted M&Q’s

motion for summary judgment on all remaining claims. The

District Court excluded evidence of certain alleged incidents

because Mandel did not testify to them in her deposition,

although she discussed them in her EEOC questionnaires.

The District Court found all of Mandel’s claims under the

PHRA time barred, as well as all claims under Title VII for

incidents that occurred prior to November 17, 2006. The

District Court then considered the remaining incidents on the

merits and granted summary judgment in favor of M&Q.

Mandel appealed, and the EEOC filed an amicus brief.

II. DISCUSSION

A. Motion to Dismiss

Mandel argues that the District Court erred in granting

M&Q’s motion to dismiss all claims of retaliation. We

exercise plenary review of an order granting a motion to

dismiss for failure to state a claim pursuant to Fed. R. Civ. P.

12(b)(6). Newman v. Beard, 617 F.3d 775, 779 (3d Cir.

7

2010). We accept all factual allegations as true and construe

the complaint in the light most favorable to the plaintiff. Id.

A plaintiff “must exhaust all required administrative

remedies before bringing a claim for judicial relief.”

Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997). To

bring a claim under Title VII, a plaintiff must file a charge of

discrimination with the EEOC and procure a notice of the

right to sue. See id. at 1020-21. The same is required to

bring a claim under the PHRA. Atkinson v. LaFayette Coll.,

460 F.3d 447, 454 n.6 (3d Cir. 2006) (“Claims under the

PHRA are interpreted coextensively with Title VII claims.”).

“[T]he parameters of the civil action in the district court are

defined by the scope of the EEOC investigation which can

reasonably be expected to grow out of the charge of

discrimination, including new acts which occurred during the

pendency of proceedings before the [EEOC].” Ostapowicz v.

Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976)

(citations omitted). A plaintiff’s claim must thus fall “fairly

within the scope of the prior EEOC complaint, or the

investigation arising therefrom.” Antol v. Perry, 82 F.3d

1291, 1295 (3d Cir. 1996).

Mandel contends, as she did before the District Court,

that she was constructively discharged due to intolerable

work conditions after she complained of sex discrimination

and sexual harassment. The District Court found that the

retaliation claims were not within the scope of the Charge,

explaining that although there was “substantial factual

overlap” between the Charge and the Complaint, they

contradicted each other on the facts supporting the retaliation

claims. In particular, the District Court noted:

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Plaintiff’s complaint alleges she

took action by complaining to the

general manager and suffered

consequent reprisal. Her EEOC

charge indicates that she did not

take action for fear of reprisal. It

cannot reasonably be expected

that the EEOC’s investigation

would encompass a claim of

retaliation for engaging in

statutorily protected activity

where Plaintiff’s charge states that

she refrained from activity that

might be protected, nor is there

any indication that a retaliation

claim was in fact investigated.

The District Court correctly concluded that the factual

statement in support of the Charge did not encompass claims

of retaliation. Mandel herself concedes that the box for

retaliation was not checked on the Charge. Mandel urges this

Court to construe the Charge liberally, however, because it “is

nearly always drafted by a non-lawyer.” “[A]n

unsophisticated, inartfully drafted Charge” should not be

dispositive of a plaintiff’s rights. Such an argument is inapt

here because Mandel, even as a non-lawyer, could have easily

checked the box for retaliation on the Charge but failed to do

so. She also failed to allege any retaliatory conduct in the

Charge. When asked in the questionnaires whether she had

reported the alleged harassment to her employer, she

responded “no” and again failed to check the box for

retaliation. Because Mandel failed to exhaust her remedies

for any claims of retaliation, we will affirm the District

9

Court’s dismissal of Counts I, II, and III to the extent that

they allege claims of retaliation.

B. Motion for Summary Judgment

Mandel appeals the District Court’s grant of summary

judgment in M&Q’s favor on the PHRA claims, the Title VII

hostile work environment claim, and the Title VII sex

discrimination claims. We review the District Court’s grant

of summary judgment de novo and apply the same standard as

the District Court. Doe v. Indian River Sch. Dist., 653 F.3d

256, 275 n.7 (3d Cir. 2011). “Summary judgment should be

granted ‘if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment

as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). We

view “the facts in the light most favorable to the nonmoving

party and draw all inferences in that party’s favor.” Id.

1. PHRA Claims

To bring suit under the PHRA, an administrative

complaint must first be filed with the PHRC within 180 days

of the alleged act of discrimination. 43 Pa. Cons. Stat.

§ 959(h). The District Court found all PHRA claims time

barred, reasoning that more than 180 days had passed from

Mandel’s resignation on May 23, 2007, to her cross-filing of

a complaint with the PHRC on December 14, 2007.

Mandel contends that the 180-day period should

instead be calculated from September 13, 2007, the date on

which the EEOC received her questionnaires. The District

Court rejected that argument, explaining that “the filing of a

charge with the EEOC in itself is not sufficient to comply

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with the PHRA.” We have previously addressed dual filing

with the EEOC and the PHRC, explaining:

[T]he worksharing agreement

[which divides responsibility for

processing claims that have been

dual filed with both the EEOC

and the PHRC] allows a plaintiff

to proceed in court under Title VII

without first filing with the

PHRC. That, however, does not

mean that a plaintiff can initiate

PHRC proceedings as required by

the PHRA merely by filing with

the EEOC. Whether a plaintiff

has initiated PHRC proceedings

under the PHRA is a state law

issue. . . . EEOC procedures are

not a sufficient surrogate for

PHRC remedies.

Woodson v. Scott Paper Co., 109 F.3d 913, 926-27 (3d Cir.

1997) (footnotes omitted). The District Court correctly

concluded, therefore, that “the mere filling out of an EEOC

charge information questionnaire cannot be in itself sufficient

to comply with the PHRA.” Moreover, as the District Court

noted, the questionnaires did not contain any indication of

dual filing. Mandel further argues that the 180-day period

should be enlarged to 300 days because Pennsylvania is a

“deferral state.” The District Court agreed that Pennsylvania

is a “deferral state” and thus the statute of limitations for the

Charge was extended to 300 days. See 42 U.S.C. § 2000e-

5(e)(1) (defining time for filing a charge as 180 days,

11

enlarged to 300 days where the complainant initially

instituted state proceedings). The District Court properly

rejected Mandel’s argument, however, because the 300-day

extended statute of limitations applies only to the Charge, not

to the PHRA filing. See id. We conclude that Mandel’s

PHRA claims are time barred and thus affirm the District

Court’s grant of summary judgment in M&Q’s favor on the

PHRA claims (Count III).

2. Title VII Claims

Under Title VII, “it shall be an unlawful employment

practice for an employer to fail or refuse to hire or to

discharge any individual, or otherwise to discriminate against

any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.” 42

U.S.C. § 2000e-2(a)(1).

a. Statute of Limitations

To bring suit under Title VII, a claimant in a deferral

state, such as Pennsylvania, must first file a complaint with

the EEOC within 300 days of the alleged unlawful

employment practice. 42 U.S.C. § 2000e-5(e)(1). “[D]iscrete

discriminatory acts are not actionable if time barred, even

when they are related to acts alleged in timely filed charges.”

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113

(2002). A discrete act in itself constitutes a separate

actionable unlawful employment practice. Id. at 114.

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Discrete acts include, for example, “termination, failure to

promote, denial of transfer, or refusal to hire.” 1 Id.

Under the continuing violation doctrine,

discriminatory acts that are not individually actionable may

be aggregated to make out a hostile work environment claim;

such acts “can occur at any time so long as they are linked in

a pattern of actions which continues into the applicable

limitations period.” O’Connor v. City of Newark, 440 F.3d

125, 127 (3d Cir. 2006) (citing Morgan, 536 U.S. at 105

(explaining court may consider “entire scope of a hostile

work environment claim . . . so long as any act contributing to

that hostile environment takes place within the statutory time

period”)). A hostile work environment claim “is composed of

a series of separate acts that collectively constitute one

‘unlawful employment practice’” and “cannot be said to

occur on any particular day.” Morgan, 536 U.S. at 115-17.

To allege a continuing violation, the plaintiff must show that

all acts which constitute the claim are part of the same

unlawful employment practice and that at least one act falls

within the applicable limitations period. See Morgan, 536

U.S. at 122; see also West v. Phila. Elec. Co., 45 F.3d 744,

754-55 (3d Cir. 1995) (explaining plaintiff must show that at

1

Mandel does not appeal the District Court’s correct

determination that her claim alleging failure to promote in

2006 was a discrete act that was time barred because it

occurred prior to February 18, 2007 (i.e. 300 days prior to the

filing of the Charge on December 14, 2007). See Morgan,

536 U.S. at 114. The District Court later found that the

EEOC questionnaires filed September 13, 2007 tolled the

statute of limitations and thus her claims would not be time

barred if they occurred after November 17, 2006.

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least one act occurred within the filing period and that the

harassment is “more than the occurrence of isolated or

sporadic acts of intentional discrimination”).

Prior to the decision of the Supreme Court in National

Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002),

we had adopted from Berry v. Board of Supervisors, 715 F.2d

971 (5th Cir. 1983), a non-exhaustive list of three factors to

aid in distinguishing between the occurrence of isolated acts

of discrimination and a persistent, ongoing pattern. In

particular, our opinions in West v. Philadelphia Electrical

Co., 45 F.3d 744 (3d Cir. 1995), and Rush v. Scott Specialty

Gases, Inc., 113 F.3d 476 (3d Cir. 1997), contained dicta

explaining that the Fifth Circuit Court of Appeals considered

the subject matter, 2 frequency, and degree of permanence 3 of

the underlying acts to distinguish continuing violations from

isolated occurrences. 4 See West, 45 F.3d at 755 n.9

(discussing Berry, 715 F.2d at 981); see also Rush v. Scott

Specialty Gases, Inc., 113 F.3d 476, 481-82 (3d Cir. 1997)

(same). Citing West, the District Court applied the Berry

factors and determined that Mandel’s claims met the subject

2

We have defined subject matter as whether the

violations constitute the same type of discrimination.

3

We have defined permanence as whether the nature

of the violations should trigger the employee’s awareness of

the need to assert her rights and whether the consequences of

the act would continue even in the absence of a continuing

intent to discriminate.

4

We note that Mandel conceded on appeal that this

three-factor analysis applies, but we find persuasive the

EEOC’s argument to the contrary and write to clarify the

continuing violation doctrine following Morgan.

14

matter and frequency requirements but failed the permanency

requirement because Mandel should have been aware of the

need to assert her rights but “did not pursue her claim with

reasonable diligence, and thus she is precluded from using the

continuing violation theory.”

Following Morgan, however, permanency is not

required to establish a continuing violation:

It is precisely because the entire

hostile work environment

encompasses a single unlawful

employment practice that we do

not hold, as have some of the

Circuits, that the plaintiff may not

base a suit on individual acts that

occurred outside the statute of

limitations unless it would have

been unreasonable to expect the

plaintiff to sue before the statute

ran on such conduct. The statute

does not separate individual acts

that are part of the hostile

environment claim from the

whole for the purposes of timely

filing and liability. And the

statute does not contain a

requirement that the employee file

a charge prior to 180 or 300 days

‘after’ the single unlawful practice

‘occurred.’ Given, therefore, that

the incidents constituting a hostile

work environment are part of one

15

unlawful employment practice,

the employer may be liable for all

acts that are part of this single

claim. In order for the charge to

be timely, the employee need only

file a charge within 180 or 300

days of any act that is part of the

hostile work environment.

Morgan, 536 U.S. at 117-18. It is clear that there is no longer

a permanency requirement under the continuing violation

doctrine and that the Supreme Court’s decision in Morgan

thus supersedes our opinions in West and Rush to the extent

that we adopted Berry.

Having clarified our continuing violation doctrine

following Morgan, we find that Mandel may proceed under a

continuing violation theory. Mandel has alleged at least one

act that falls within the statute of limitations (i.e. Bachert

calling her a “bitch” during a meeting), and many of the acts

that occurred prior to the applicable limitations period

involved similar conduct by the same individuals, suggesting

a persistent, ongoing pattern. We will, therefore, remand the

case to the District Court for further proceedings, including a

determination of the scope of the incidents properly

considered part of the continuing violation for the hostile

work environment claim.

Furthermore, to address the concern that a plaintiff

might “unreasonably” delay filing a charge, Morgan

explained that employers would have recourse, including

equitable defenses such as laches. Morgan, 536 U.S. at 121-

22. M&Q raised the doctrine of laches as a defense, but the

16

District Court did not consider it. In light of our clarified

doctrine, M&Q should be given an opportunity to argue the

laches defense, and the District Court should consider

whether it applies.

b. Hostile Work Environment

Title VII prohibits sexual harassment that is

“sufficiently severe or pervasive to alter the conditions of [the

plaintiff’s] employment and create an abusive working

environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S.

57, 67 (1986). To succeed on a hostile work environment

claim, the plaintiff must establish that 1) the employee

suffered intentional discrimination because of his/her sex, 2)

the discrimination was severe or pervasive, 3) the

discrimination detrimentally affected the plaintiff, 4) the

discrimination would detrimentally affect a reasonable person

in like circumstances, and 5) the existence of respondeat

superior liability. Jensen v. Potter, 435 F.3d 444, 449 (3d

Cir. 2006), overruled on other grounds by Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). The first four

elements establish a hostile work environment, and the fifth

element determines employer liability. Huston v. Procter &

Gamble Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir.

2009).

As a threshold matter, the District Court must

reexamine the scope of the incidents that are part of the

continuing violation before the hostile work environment

claim may be evaluated. We will, therefore, reverse the grant

of summary judgment on the hostile work environment claim

and remand for further proceedings. In doing so, we briefly

address two evidentiary concerns and several of the elements

17

of the hostile work environment claim that were heavily

contested on appeal. We also note that the parties do not

dispute the District Court’s finding that Mandel satisfied the

first element because she had presented “sufficient evidence

from which a reasonable jury could infer that the alleged

harassment was based on her sex.”

i. Scope of Evidence

First, so-called “me too” evidence in an employment

discrimination case is neither per se admissible nor per se

inadmissible. Spring/United Mgmt. Co. v. Mendelsohn, 552

U.S. 379, 388 (2008). Rather, the question of whether

evidence of discrimination against other employees by other

supervisors is relevant is fact based and depends on several

factors, including how closely related the evidence is to the

plaintiff’s circumstances and theory of the case. Id. We

“afford broad discretion to a district court’s evidentiary

rulings.” Id. at 384. We find that the District Court properly

excluded the so-called “me too” evidence, which consisted of

the deposition testimony of two former employees of M&Q

Plastic Products, Inc., because the two employees were not

employed by defendant M&Q Packaging but by defendant’s

parent corporation.

Second, the EEOC argues that the District Court erred

by disregarding three specific instances of harassment that

Mandel listed in her signed Charge but did not testify to in

her deposition because the Charge is a sworn statement,

signed under the penalty of perjury, and thus should be

regarded as more than “bare assertions” or “conclusory

allegations.” Because an affidavit attached to a signed EEOC

charge may raise genuine issues of material fact, see Liotta v.

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Nat’l Forge Co., 629 F.2d 903, 907 (3d Cir. 1980), the

District Court erred in excluding those incidents. On remand,

the District Court should consider whether those three

incidents are part of the continuing violation.

ii. “Severe or Pervasive”

To determine whether an environment is hostile, a

court must consider the totality of the circumstances,

including “the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating,

or a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.” Harris v.

Forklift Sys., Inc., 510 U.S. 17, 23 (1993); see also Caver v.

City of Trenton, 420 F.3d 243, 262-63 (3d Cir. 2005) (“[A]

discrimination analysis must concentrate not on individual

incidents, but on the overall scenario.”). The District Court

summarized the alleged incidents and concluded that “none of

the alleged incidents is sufficiently severe to establish a

hostile work environment.” The District Court’s reasoning

suggests that it improperly parsed out each event and viewed

them separately, rather than as a whole. On remand, the

District Court must consider the totality of the circumstances,

rather than parse out the individual incidents, to determine

whether the acts that collectively form the continuing

violation are severe or pervasive.

iii. “Detrimentally Affected”

We agree with the District Court that an objectively

reasonable person in Mandel’s place might be offended by the

alleged incidents. We are troubled, however, by the District

19

Court’s conclusion that Mandel failed to show that she was

detrimentally affected by the alleged incidents:

Here, Mandel only complained

about one of the alleged incidents

(Bachert’s name calling), and she

complained to a friend at work

and not a supervisor. Further, she

has presented no evidence that she

had any psychological distress or

that her ability to perform her job

was impaired. Finally, the record

contains evidence that Mandel

actively participated in creating a

work environment in which

vulgarity and sexual innuendo

were commonplace. Mandel’s

use of explicit language and her e-

mails involving ongoing sexual

jokes demonstrate a casual ease

with this type of workplace

behavior. The use of sexual

humor does not on its own

demonstrate that Mandel is

incapable of being offended by

degrading comments, but when

combined with a lack of evidence

of any subjective distress, a

reasonable jury could not find that

Mandel has proven that the

harassment had a detrimental

effect on her.

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Although Mandel engaged in certain unprofessional

conduct, the comments and conduct to which she was subject

were often worse and apparently uninvited. Mandel

complained about being told to make coffee, and although she

did not complain to her supervisors about the other alleged

incidents, there is some evidence that she complained to other

employees. She also resigned shortly after Bachert called her

a “bitch” during a meeting and alleged in her sworn EEOC

Charge and questionnaires that she was detrimentally

affected. A jury could reasonably conclude that Mandel did

not invite these comments or conduct and that, despite her

own conduct, was offended by them. Because the inherently

subjective question of whether particular conduct was

unwelcome presents difficult problems of proof and turns on

credibility determinations, the District Court erred in granting

summary judgment.

iv. Respondeat Superior

Liability

The basis of an employer’s liability for a hostile work

environment claim depends on whether the harasser is the

victim’s supervisor or coworker. Huston, 568 F.3d at 104.

Because the District Court concluded that Mandel failed to

establish a hostile work environment, it did not reach the

question of employer liability. There is an inadequate record

before us on appeal from which to determine whether

respondeat superior liability exists. Because we reverse and

remand for further proceedings on the hostile work

environment claim, we leave the issue to the District Court to

determine on remand.

21

In sum, permanency is not required to show a

continuing violation following Morgan, and we thus reverse

the District Court’s grant of summary judgment on the Title

VII hostile work environment claim (Count II) and remand

for further proceedings.

c. Sex Discrimination

To prevail in a sex discrimination claim under Title

VII, a plaintiff must first establish by a preponderance of the

evidence a prima facie case of discrimination. Tex. Dep’t of

Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). A

plaintiff must show that “1) s/he is a member of a protected

class, 2) s/he was qualified for the position s/he sought to

attain or retain, 3) s/he suffered an adverse employment

action, and 4) the action occurred under circumstances that

could give rise to an inference of intentional discrimination.”

Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008).

The parties do not dispute that Mandel is a member of

a protected class based on her sex or that she was qualified

for her position. Rather, Mandel contends that the District

Court erred by finding that she was neither constructively

discharged nor subject to disparate treatment regarding wages

and career opportunities.

i. Constructive Discharge

Mandel contends that the meeting during which

Bachert called her a “bitch” caused her to resign, resulting in

a constructive discharge. To establish a constructive

discharge, Mandel must show that “the employer knowingly

22

permitted conditions of discrimination in employment so

intolerable that a reasonable person subject to them would

resign.” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074,

1084 (3d Cir. 1996). We employ an objective test and thus an

employee’s subjective perceptions of unfairness or harshness

do not govern a claim of constructive discharge. Gray v. York

Newspapers, Inc., 957 F.2d 1070, 1083 (3d Cir. 1992). In

determining whether an employee was forced to resign, we

consider a number of factors, including whether the employee

was threatened with discharge, encouraged to resign,

demoted, subject to reduced pay or benefits, involuntarily

transferred to a less desirable position, subject to altered job

responsibilities, or given unsatisfactory job evaluations.

Colwell v. Rite Aid Corp., 602 F.3d 495, 503 (3d Cir. 2010).

The District Court concluded that Mandel failed to

prove a hostile working environment and thus also concluded

that she necessarily failed to establish a constructive

discharge claim. See Spencer v. Wal-Mart Stores, Inc., 469

F.3d 311, 317 n.4 (3d Cir. 2006) (“To prove constructive

discharge, the plaintiff must demonstrate a greater severity or

pervasiveness of harassment than the minimum required to

prove a hostile working environment.”). Because we will

reverse the District Court’s decision with respect to the

hostile work environment claim, its reasoning for the

constructive discharge claim is no longer sufficient. On

remand, the District Court should review the constructive

discharge claim in light of evidence of a hostile work

environment to determine if the conditions of Mandel’s

employment had become intolerable.

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ii. Disparate Treatment

Mandel also contends that she received lower wages

and less vacation time than similarly situated male

employees, specifically Frank Drozal. The District Court

correctly concluded that Mandel failed to raise the necessary

inference of discrimination because the employees to which

Mandel compared herself were not similarly situated—in

particular, Drozal held a different position and had a higher

level of education. Although the identification of a similarly

situated individual outside of the protected class, who

engaged in the same conduct but was treated more favorably,

may give rise to an inference of unlawful discrimination, an

employee who holds a different job in a different department

is not similarly situated. See Pivirotto v. Innovative Sys., Inc.,

191 F.3d 344, 358-59 (3d Cir. 1999). We thus will affirm the

District Court’s grant of summary judgment on the Title VII

sex discrimination claims (Count I).

III. CONCLUSION

For the reasons set forth above, we will affirm the

judgment of the District Court with respect to the retaliation

claims, the PHRA claims, and the Title VII sex discrimination

claims, but we will reverse the grant of summary judgment

with respect to the Title VII hostile work environment and the

constructive discharge claims and remand for further

proceedings in accordance with this opinion.

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