Aman v. Cort Furniture

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit

5-30-1996

Aman v. Cort Furniture
Precedential or Non-Precedential:

Docket 95-5142

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

___________

No. 95-5142
___________

CAROL AMAN; JEANETTE JOHNSON

Appellants,

vs.

CORT FURNITURE RENTAL CORPORATION

Appellee.

___________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

(D.C. Civil No. 93-cv-01344)

___________

ARGUED JANUARY 24, 1996

BEFORE: STAPLETON, MANSMANN and LEWIS, Circuit Judges.

(Filed May 30, 1996)

___________

Ian Stuart
Daniel J. DeLuca (ARGUED)
510 White Horse Pike
Audobon, NJ 08106

Attorneys for Appellants

Michael J. Vassalotti
Brown & Connery
360 Haddon Avenue
Post Office Box 539
Westmont, NJ 08108

Edward Katze
Constangy, Brooks & Smith
230 Peachtree Street
Suite 2400
Atlanta, GA 30303

Michael L. Blumenthal (ARGUED)
Suite 2400
230 Peachtree Street, N.W.
Atlanta, GA 30303

Attorneys for Appellee

___________

OPINION OF THE COURT
___________

LEWIS, Circuit Judge.
Carol Aman and Jeanette Johnson appeal from the
district court's grant of summary judgment in favor of Cort
Furniture Rental Corporation on their employment discrimination
claims brought under Title VII of the Civil Rights Act of 1964,
42 U.S.C. 2000e, et seq, and the New Jersey Law Against
Discrimination, N.J. Stat. Ann. 10:5-12, et seq. They argue that
the record contains evidence from which a jury could conclude:
(1) that while employed at Cort Furniture, they were subject to a
hostile work environment; (2) that Aman was constructively
discharged; (3) that Johnson was discharged in retaliation for
protesting discrimination at Cort Furniture; and (4) that black
employees were paid less than similarly situated white employees.
For the reasons which follow, we will reverse the
district court's grant of summary judgment as to Aman's and
Johnson's hostile environment, constructive discharge and
retaliatory discharge claims, and will affirm its judgment as to
their unequal pay claims.
I.
Carol Aman and Jeanette Johnson, both black, were hired
by Cort Furniture's Philadelphia district office in 1986. Aman
was hired as a bookkeeper and Johnson was hired as a credit
manager. Both Aman and Johnson claim that during their
employment at Cort Furniture, they were subjected to an
atmosphere of racial contempt and harassment. Aman claims that
this resulted in her constructive discharge. Johnson claims that
she was discharged in retaliation for complaining about Cort
Furniture's discriminatory practices.
From 1986 through the termination of their employment
in 1992, Aman and Johnson claim that co-workers and managers
engaged in a pervasive and systematic pattern of harassment
toward black employees. Aman and other black employees were
referred to as "another one," "one of them," and "poor people."
Aman was also the target of at least three false accusations of
favoritism allegedly exhibited toward her by her black
supervisor, as well as dereliction of duty. On several
occasions, co-workers physically snatched documents from Aman's
hands and stole time cards that she needed to perform her job.
This behavior, however, was not limited to Aman and
Johnson's co-workers; it was engaged in by management as well.
For example, both Aman and Johnson heard Allen Shuttleworth,
Regional Vice-President of Cort Furniture, make disparaging
racial remarks about their supervisor, Joyce Lampkin. On one
occasion, Shuttleworth came into the office and asked the white
employees on Lampkin's staff, "Where is that one in there?"
Despite this harassment, in 1989 Aman was promoted to
the position of credit manager, and Johnson became supervisor of
the administrative department after Lampkin moved to the sales
department. As a credit manager Aman was responsible for
approving credit and collecting on past due accounts. Cort
Furniture salespeople were required to submit credit applications
to a credit clerk, who would run a credit check in order to
determine whether to grant credit to the customer. After these
promotions, Johnson became Aman's immediate supervisor. In
November of that year, Johnson received a letter from the
president of Cort Furniture congratulating her for her
outstanding performance and for the performance of the
department.
Aman's new position as credit manager did nothing to
increase the respect of her fellow employees. She continued to
suffer harassment from white sales staff and management,
including Karen Brady, Lisa Jentsch, Katie Gauthier, Laura
Greathead, Chris Benzle, Robert Kurtz, and Barry Boswell.
According to Aman, the general atmosphere of racial hostility
"lead [sic] white employees to feel confident that what they said
would be listened to over black and made the whites uncooperative
and unsupportive to blacks." As examples, Aman and Johnson point
to the fact that Benzle instructed Johnson to put a derogatory
memorandum in Aman's personnel file because he wanted Aman "out."
Brady, Jentsch, and Greathead bypassed Aman and extended credit
to customers against Cort Furniture policy, and there is no
evidence that any of them were reprimanded for their behavior.
In addition, Boswell, the sales manager, continually ignored
Aman's requests for information necessary to her job. He also
allegedly harassed Aman and another black employee by making them
do menial tasks which were not within their job descriptions,
such as running his personal errands. There is no evidence to
indicate that he ever asked similarly situated white employees to
do those tasks.
On one particular occasion, while Aman was using the
restroom, Gauthier, a sales representative, demanded that Aman
approve a credit application immediately. Aman replied, "Katie,
have you heard the latest, Lincoln freed slaves?" In response to
that remark Gauthier complained to Shuttleworth, who refused to
speak to Aman from that day forward. Shuttleworth then
approached Johnson and told her that "Aman has got to go." In
response to this dispute, Jim Newton, the controller, called
Johnson and stated that "if this continues we're going to have to
come up there and get rid of all of you." When Johnson asked
what he meant by "all of you," Newton refused to elaborate.
During this conversation, Johnson informed Newton that the racial
problems at Cort Furniture were getting out of control.
In meetings with Boswell and Kurtz, Johnson informed
Cort Furniture's management that salespeople were harassing and
insulting black warehouse employees by constantly telling them
"Don't touch anything" in customers' homes and "Don't steal."
Johnson also asked why black employees were being paid less than
white employees, but was told only that that was a Human
Resources Department issue.
When Kurtz became general manager in June of 1991, the
harassment apparently increased. Kurtz began to yell at Aman on
a regular basis. When he met with Aman for the first time as
general manager, Kurtz told her that he "knew all about" Aman,
Jeanette Johnson, and Bruce Buchanan. The only thing these three
employees had in common was that they were black. Until Aman
departed, Kurtz subjected her to careful scrutiny whenever she
interacted with white female employees.
Johnson was also the focus of Kurtz's harassment.
According to Johnson, Kurtz made it known that he had offered her
job to a white employee. Kurtz then made it more difficult for
her to perform her job by withholding necessary financial
information. On one occasion, as a result of conflicting
instructions from Kurtz and Newton, Newton apparently slammed
Johnson's door and yelled at her. While he later apologized,
Newton admitted that he never treated anyone else in the same
manner.
During August of 1991, the racial problems at Cort
Furniture appeared to be coming to a head. Kurtz received a
letter of complaint about Aman from Stephen Urbish, a customer of
Cort Furniture. After another incident between Kurtz and Aman in
which Kurtz yelled at her in front of the entire office, he
refused to discuss business matters with Aman, and instead
informed her that he was receiving complaints about her.
On October 10, 1991, Kurtz forced Johnson to issue a
formal warning to Aman, despite Johnson's objection. Although
the warning stated that customers had complained about Aman,
Johnson could recall but a single complaint, one in which a
customer complained that he did not appreciate being called and
told that he owed money. Later, Johnson was instructed to give
Aman a work plan which required Johnson to spend two hours
everyday monitoring Aman. Johnson informed Cort Furniture that
it was her opinion that the work plan was unnecessary, but was
forced to comply in order to keep her job.
On October 18, 1991, Aman's counsel sent a letter to
Cort Furniture complaining of discrimination against Aman. Later
that month in a district meeting attended by all administrative,
sales and warehouse employees, Kurtz allegedly stated that "the
blacks are against the whites," and that if anyone didn't like it
at Cort Furniture, they could leave.
 In January of 1992, Kurtz once again became angry with
Aman, this time for not granting credit approval for a project
which would have contradicted prior instructions she had
received. In February, Aman resigned after giving four days
notice, and filed a charge of discrimination with the EEOC. Aman
testified that the hostile environment in which she worked had
forced her to see a doctor for nervousness three times in 1991
and once in 1992.
Johnson also observed the discriminatory treatment of
other black employees. Johnson testified that every time she
hired a black person at Cort Furniture, there were complaints
from salespeople and general managers about that person's
performance. In addition, in 1991 she personally witnessed the
firing of James Washington, a black warehouse employee, who was
terminated for accepting a tip from a customer, while on the same
day a white warehouse employee failed his third drug test but was
kept on in violation of company policy. In 1992, Johnson was
forced to terminate Robin Flagg, a black customer service
representative. According to Johnson, Flagg's only offense was
that she had not received the training from Cort Furniture which
would have enabled her properly to do her job. Also in 1992,
Johnson was forced to terminate a black warehouseman for too many
accidents, even though at least one other white warehouseman with
as many accidents was not fired.
After Aman resigned, Kurtz told Johnson to "hire an
Italian, they won't take no for an answer." She was also
instructed by members of management, including Tom Rogers and
Regional Vice-President Shuttleworth, to gather as much
derogatory information about Aman as she could. Johnson informed
them that all relevant information was already in Aman's
personnel file, but management persisted. Johnson was told that
Aman had filed a complaint with the EEOC, and they needed this
information in order to prevail.
In response to Aman's discrimination charge, Cort
Furniture required the depositions of several employees,
including Johnson. Shuttleworth telephoned Johnson on August 7,
1992, and asked her to give a statement the following week. When
Johnson informed him that she would be on vacation until the
17th, he said that they would get in touch with her when she
returned. On Sunday, August 16th, the day before Johnson was
supposed to return to work following her vacation, Shuttleworth
called Johnson at her home at 9:30 p.m. and informed her that she
was scheduled for a deposition the following afternoon.
According to Johnson, this was the first time anyone ever
mentioned the term "deposition" to her.
The next morning, Johnson telephoned Human Resources
and eventually spoke with Kim Martin, an employee in the
department. Johnson informed Martin that she wanted to speak to
her attorney and to other people in Human Resources before she
proceeded with the deposition. Martin responded that Johnson's
proposal was acceptable, as long as she realized Cort Furniture
would still want her to give a deposition. Johnson replied that
she did not have a problem with giving a deposition once she knew
what her rights were. After missing her scheduled deposition,
Johnson was fired. Johnson was advised that she had been
terminated because her failure to attend the deposition proved
"that you are not loyal to this company."
Aman and Johnson filed this suit against Cort Furniture
alleging racial discrimination in violation of Title VII and the
New Jersey Law Against Discrimination. They alleged that Cort
Furniture created a racially hostile work environment, paid
blacks less than whites, constructively discharged Aman, and
fired Johnson in retaliation for protesting discriminatory
practices. Cort Furniture moved for summary judgment on the
Title VII claims, and the district court granted Cort Furniture's
motion. The court found that Aman and Johnson had failed to
establish a claim of hostile environment because the evidence
demonstrated only rudeness, and not racial animus; that they had
failed to demonstrate that they were paid less than similarly
situated white employees; that Aman had failed to demonstrate
that a reasonable person would have resigned; and that Johnson
had failed to present any evidence to demonstrate that she was
fired for participating in protected activity. The district
court then dismissed Aman and Johnson's state claims with
prejudice. This appeal followed.
II.
We have held repeatedly that the party moving for
summary judgment under Fed. R. Civ. P. 56(c) bears the burden of
demonstrating the absence of any genuine issues of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Chipollini v.
Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987). This
burden remains with "the moving party regardless of which party
would have the burden of persuasion at trial." Chipollini, 814
F.2d at 896.
As we noted at the outset (and as our factual
recitation in Part I of this opinion would indicate), when
determining whether the moving party has proven the absence of a
genuine material issue of fact, the facts asserted by the
nonmoving party, if supported by affidavits or other evidentiary
material, must be regarded as true, Scott v. Plante, 532 F.2d 939
(3d Cir. 1976); and "the inferences to be drawn from the
underlying facts . . . must be viewed in the light most favorable
to the party opposing the motion." Matsushita, 475 U.S. at 587
(quoting United States v. Diebold, Inc., 369 U.S. 654, 655
(1962)) (emphasis added); Celotex, 477 U.S. at 330 n.2 ("any
doubt as to the existence of a genuine issue for trial should be
resolved against the moving party."). Viewed under this lens,
"[i]f . . . there is any evidence in the record from any source
from which a reasonable inference in the [nonmoving party's]
favor may be drawn, the moving party simply cannot obtain a
summary judgment . . . ." Celotex, 477 U.S. at 330 n.2 (quoting
In re Japanese Electronic Products Antitrust Litigation, 723 F.2d
238, 258 (1983), reversed on other grounds sub nom. Matsushita,
475 U.S. 574 (1986)).
A district court's grant of summary judgment is subject
to plenary review, Public Interest Research of N.J. v. Powell
Duffryn Terminals, Inc., 913 F.2d 64, 71 (3d Cir. 1990), and we
are required "to apply the same test the district court should
have utilized initially." Goodman v. Mead Johnson & Co., 534
F.2d 566 (3d Cir. 1976); see also Berner Int'l Corp. v. Mars
Sales Co., 987 F.2d 975 (3d Cir. 1993); and J.F. Feeser, Inc. v.
Serv-A-Portion, Inc., 909 F.2d 1524, 1530 (3d Cir. 1990).
On summary judgment, Cort Furniture does not challenge
the factual basis of Aman and Johnson's supporting evidence, but
claims instead that even if their evidence is true, it would be
insufficient to establish impermissible employment practices
under Title VII. Cort Furniture is, therefore, required to
demonstrate that there is no evidence in the record upon which
any reasonable jury could conclude that discrimination occurred.
For the following reasons, we conclude that Cort Furniture failed
to carry its burden.
III. Title VII Claims
A. Hostile Environment.
In order to establish a claim for employment
discrimination due to an intimidating or offensive work
environment, a plaintiff must establish, "by the totality of the
circumstances, the existence of a hostile or abusive environmentwhich is
severe enough to affect the psychological stability of a
minority employee." Andrews v. City of Philadelphia, 895 F.2d
1469, 1482 (3d Cir. 1990) (quoting Vance v. Southern Bell Tel.
and Tel. Co., 863 F.2d 1503, 1510 (11th Cir. 1989)).
Specifically, a plaintiff must show: (1) that he or she suffered
intentional discrimination because of race; (2) the
discrimination was pervasive and regular; (3) the discrimination
detrimentally affected the plaintiff; (4) the discrimination
would detrimentally affect a reasonable person of the same race
in that position; and (5) the existence of respondeat superior
liability. Id.; West Philadelphia Elec. Co., 45 F.3d 744, 753
(3d Cir. 1995). As the Supreme Court has emphasized:
whether an environment is "hostile" or
"abusive" can be determined only by looking
at the circumstances. These may include 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 Systems, Inc., 114 S. Ct. 367, 371, 126
L.Ed.2d 295, 302 (1993).
The issue in this case is whether the district court
correctly determined that the plaintiffs failed to demonstrate
that they suffered from intentional racial discrimination or that
the discrimination was pervasive and regular.
In many respects, the facts of this case represent what
has become the typical Title VII employment discrimination case
of this decade. Anti-discrimination laws and lawsuits have
"educated" would-be violators such that extreme manifestations of
discrimination are thankfully rare. Though they still happen,
the instances in which employers and employees openly use
derogatory epithets to refer to fellow employees appear to be
declining. Regrettably, however, this in no way suggests that
discrimination based upon an individual's race, gender, or age is
near an end. Discrimination continues to pollute the social and
economic mainstream of American life, and is often simply masked
in more subtle forms. It has become easier to coat various forms
of discrimination with the appearance of propriety, or to ascribe
some other less odious intention to what is in reality
discriminatory behavior. In other words, while discriminatory
conduct persists, violators have learned not to leave the
proverbial "smoking gun" behind. As one court has recognized,
"[d]efendants of even minimal sophistication will neither admit
discriminatory animus or leave a paper trail demonstrating it."
Riordan v. Kempiners, 831 F.2d 690, 697 (7th Cir. 1987). But
regardless of the form that discrimination takes, the
impermissible impact remains the same, and the law's prohibition
remains unchanged. "Title VII tolerates no racial
discrimination, subtle or otherwise." McDonnell Douglas Corp. v.
Green, 411 U.S. 793, 801 (1973).
The sophisticated would-be violator has made our job a
little more difficult. Courts today must be increasingly
vigilant in their efforts to ensure that prohibited
discrimination is not approved under the auspices of legitimate
conduct, and "a plaintiff's ability to prove discrimination
indirectly, circumstantially, must not be crippled . . . because
of crabbed notions of relevance or excessive mistrust of juries."
Riordan, 831 F.2d at 698.
Considered in the light most favorable to them, Aman
and Johnson have produced sufficient evidence so that a
reasonable jury could conclude that the working environment at
Cort Furniture was pervaded by discriminatory "intimidation,
ridicule, and insult." Harris, 114 S. Ct. at 370, 126 L.Ed.2d at
301. The plaintiffs' evidence demonstrates that from 1986
through 1992, employees of Cort Furniture made inherently racist
remarks. Aman and Johnson were referred to as "another one,"
"one of them," "that one in there," and "all of you." Other
black employees were harassed on a daily basis by employees at
Cort Furniture, who hurled insults such as "don't touch
anything," and "don't steal." Aman and Johnson were also
subjected to apparently false accusations of favoritism,
incompetence, and were made to do menial jobs. The evidence of
record shows that white employees were not treated in a similar
fashion. In addition, several employees refused to deal with
Aman even in matters where she was directly responsible for
approving a customer's credit, and these employees were never
reprimanded even though their actions were in direct violation of
company policy.
Cort Furniture argued, and the district court agreed,
that any racial harassment ended in 1989 because by then many of
the individuals who had made these remarks were no longer
employed by Cort Furniture. If that were true, then Aman and
Johnson's claims based solely on those incidents would be time-
barred. But in addition to many other instances of abusive and
harassing behavior, Aman and Johnson point to several
particularly troubling comments made in 1991 by current
management level employees.
 First, in a discussion with Johnson, Jim Newton, the
district controller, stated that if things were not resolved with
Aman, "we're going to have to come up there and get rid of all of
you." App. at 41. When asked whom he meant by "all of you,"
Newton refused to answer. Id. Second, Robert Kurtz, the general
manager, after slamming his hand on Aman's desk, told her that he
knew all about her and two other employees. The only factor the
three shared in common was their race. Id. at 316. Third, in a
district meeting attended by all administrative, sales, and
warehouse employees, Kurtz stated that "the blacks are against
the whites," and that if anyone did not like it at Cort
Furniture, they could leave. Id. at 323.
The district court's conclusion that harassment ended
in 1989 appears to be based upon a belief that these later
comments were not racially motivated. Aman, slip op. at 12. In
our view, however, the use of "code words" can, under
circumstances such as we encounter here, violate Title VII.
Indeed, a reasonable jury could conclude that the intent to
discriminate is implicit in these comments. Cf. Andrews, 895
F.2d at 1482 n.3 ("The intent to discriminate on the basis of sex
in cases involving sexual propositions, innuendo, pornographic
materials, or sexual derogatory language is implicit, and thus
should be recognized as a matter of course."). There are no
talismanic expressions which must be invoked as a condition-
precedent to the application of laws designed to protect against
discrimination. The words themselves are only relevant for what
they reveal -- the intent of the speaker. See Futrell v. J.I.
Case, 38 F.3d 342, 347 (7th Cir. 1994) (holding that statements
like "sharp young people" and that the employee was not a
"forward enough thinker" could reasonably be interpreted as
evidence of bias under the ADEA). A reasonable jury could find
that statements like the ones allegedly made in this case send a
clear message and carry the distinct tone of racial motivations
and implications. They could be seen as conveying the message
that members of a particular race are disfavored and that members
of that race are, therefore, not full and equal members of the
workplace. As we have held, the pervasive use of derogatory and
insulting terms directed at members of a protected class
generally, and addressed to those employees personally, may serve
as evidence of a hostile environment. Andrews, 895 F.2d at 1485.
Moreover, a reasonable jury could conclude that Kurtz's statement
that "the blacks are against the whites" represents management's
explicit recognition of a racially hostile environment at Cort
Furniture.
In addition to those described above, Aman and Johnson
testified to numerous other examples of harassment which, viewed
in isolation, arguably may not have been motivated by racial
animus. For example, Aman alleges that her time cards were
stolen, making it harder for her to perform her job. Other
employees physically snatched things from her. Aman was falsely
accused of wrongdoing on at least two occasions. As discussed
earlier, several employees, including a sales manager, ignored or
refused to deal with Aman. Johnson was informed on several
occasions that Aman "had to go." In addition, Kurtz yelled at
Aman on a daily basis, and there is conflicting evidence as to
whether he yelled at any white employees at Cort Furniture.
After Aman and Johnson began complaining about racial
discrimination, employees were asked to keep complaint lists
about Aman. Similarly, Kurtz withheld relevant financial
information from Johnson and gave her orders that directly
contradicted orders from the controller, Jim Newton, as well as
company policy. In response to one of these occasions, Newton
slammed the door to Johnson's office and yelled at her. Even
though he apologized, he admitted that he had never behaved in
this fashion toward anyone else.
In light of the suspicious remarks discussed above, a
reasonable jury could interpret this behavior as part of a
complex tapestry of discrimination when examined in conjunction
with the comments made by Cort Furniture's employees and
management. As we have said,
A play cannot be understood on the basis of
some of its scenes but only on its entire
performance, and similarly, a discrimination
analysis must concentrate not on individual
incidents, but on the overall scenario. . . .
` . . . What may appear to be a legitimate
justification for a single incident of
alleged harassment may look pretextual when
viewed in the context of several other
incidents.'
Id. at 1484 (quoting Vance v. Southern Bell Tel. and Tel Co., 863
F.2d 1503, 1510 (11th Cir. 1989)) (concluding that missing files,
anonymous calls, and vandalism could be evidence of a hostile
environment). We do not imply that such acts of harassment must
be accompanied by racially discriminatory statements. Indeed, we
have previously held that overt racial harassment is not
necessary to establish a hostile environment. See Andrews, 895
F.2d at 1485. All that is required is a showing that race is a
substantial factor in the harassment, and that if the plaintiff
had been white she would not have been treated in the same
manner. Id. We simply note that the harassment of black
employees, when combined with the discriminatory statements made
by other Cort Furniture employees, can be viewed as making the
plaintiffs' racial discrimination claim all the more compelling.
This is especially true given that a reasonable jury could
conclude that Cort Furniture's management was not only aware of
these acts and statements, but was also a source of the
harassment and comments.
Viewed in the light most favorable to the non-moving
parties, Aman and Johnson not only have established a prima faciecase of
discrimination, but they have also provided sufficient
evidence such that a reasonable jury could conclude that they
were subject to intentional discrimination on a regular and
pervasive basis. We conclude, therefore, that summary judgment
as to Aman and Johnson's hostile environment claim should not
have been granted.
B. Constructive Discharge.
In order to establish a constructive discharge, a
plaintiff must show that "the employer knowingly permitted
conditions of discrimination in employment so intolerable that a
reasonable person subject to them would resign." Goss v. Exxon
Office Systems Co., 747 F.2d 885, 888 (3d Cir. 1984). In Goss,
we upheld a finding of constructive discharge which stemmed from
the reassignment of the plaintiff to a less lucrative territory
based upon her sex. In doing so, we found two factors to be
particularly persuasive: (1) the employee had lost confidence in
herself and her employer; and (2) the reassignment represented a
substantial cut in pay. Id. at 888-89. Similarly, in Levendos
v. Stern Entertainment, Inc., 860 F.2d 1227, 1231 (3d Cir. 1988),
we reversed a district court's grant of summary judgment on a
claim of constructive discharge, stating:
While we can imagine a maitre'd who might not
object to exclusion from management meetings,
denial of authority to order supplies, false
accusations of stealing from and drinking on
the job, and who might not be disturbed by
rumors and remarks that she would be replaced
by a male, her employer's refusal to talk
with her, and to find wine bottles in her
locker, we find that these events are clearly
not trivial.
We held that a jury could ultimately decide that a reasonable
person would be forced to quit. Id.
With regard to Aman's constructive discharge claim, the
district court held that: (1) she had not put forth sufficient
evidence to support a finding of racial discrimination; (2) the
conditions could not have been intolerable as a matter of law
because she remained in her job for approximately four months
after claiming that they were intolerable; and (3) the specific
events that prompted her departure were insufficient as a matter
law. Aman, slip op. at 16. We will address each conclusion in
turn.
Because we believe that Aman has provided sufficient
evidence to support her claim of racial discrimination as
discussed above, we will not repeat that discussion here.
Suffice it to say that courts have found constructive discharge
based upon a continuous pattern of discriminatory treatment over
a period of years, Nolan v. Cleland, 686 F.2d 806, 813 (9th Cir.
1982); Clark v. Marsh, 665 F.2d 1168 (D.C. Cir. 1981), and Aman
has set forth sufficient facts so that a reasonable jury could
conclude that her decision to leave was reasonable based upon the
history of discriminatory treatment.
The district court's second and third conclusions must
be addressed in tandem. As an initial matter, we have rejected
imposing an "aggravated circumstances" requirement upon
constructive discharge claims. Levendos, 860 F.2d at 1232 ("we
cannot state as a broad proposition of law that a single non-
trivial incident of discrimination can never be egregious enough
to compel a reasonable person to resign."). The fact that Aman
had been subject to continuous discrimination during her
employment could support a conclusion that she simply had had
enough. No other precipitating facts were legally required.
Even if we did require aggravating circumstances, the courts in
Nolan and Clark both found that a history of discrimination
constituted aggravating circumstances and we see no reason to
disagree with that conclusion. Accordingly, the fact that Aman
left four weeks after her attorney contacted Cort Furniture
alleging intolerable conditions does not preclude a finding that
a reasonable person would be compelled to resign under the
circumstances. A jury could conclude that the conditions of her
employment were intolerable, and that while she had the fortitude
to stay, her strength finally failed.
Finally, there is evidence from which a jury could
conclude that the circumstances of Aman's employment changed
during those four months. When asked about the incidents
prompting her decision to leave, Aman answered:
I believe being called in and told that I had
to be written up, this was after I tried to
cooperate with the work plan that had been
given me . . . Mr. Kurtz behaving badly to me
. . . Making accusations that I wasn't doing
my job properly, the way he spoke to me, the
way he yelled at me and ordered me in his
office, disregarding my own supervisor and
doing it in front of other people.
App. 287-88. When asked what happened between the time her
attorney first contacted Cort Furniture and her departure, she
testified that the harassment "stepped up." App. at 284-86.
Specifically, after her attorney contacted Cort Furniture, Kurtz
and other employees became even more abusive than usual. It was
during this period that Aman was informed that she was to be
formally reprimanded and that employees had been instructed to
compile complaint lists about her. It was also after her
attorney's letter that Kurtz made his statement that "the blacks
are against the whites," and that those who didn't like it should
leave. Taken as a whole, a reasonable jury could certainly
conclude that after being subjected to these conditions, Aman was
constructively discharged.

C. Retaliatory Discharge.
To establish a prima facie case for retaliatory
discharge, a plaintiff must show: (1) that she engaged in a
protected activity; (2) that she was discharged subsequent to or
contemporaneously with such activity; and (3) that a casual link
exists between the protected activity and the discharge. Jalil
v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989). Cort Furniture
argues, and the district court agreed, that Johnson was not fired
for engaging in a protected activity because failure to
participate in the internal investigation was a legitimate ground
for her termination. Aman, slip op. at 17. Once again, this
conclusion is not supported by the evidence when considered in
the light most favorable to Johnson.
As a preliminary matter, protesting what an employee
believes in good faith to be a discriminatory practice is clearly
protected conduct. 42 U.S.C. 2000e-3(a); Griffiths v. Cigna
Corp., 988 F.2d 457, 468 (3d Cir. 1993). Thus, "a plaintiff need
not prove the merits of the underlying discrimination complaint,
but only that `he was acting under a good faith, reasonable
belief that a violation existed.'" Griffiths, 988 F.2d at 468
(quoting Sumner v. United States Postal Service, 899 F.2d 203,
209 (2d Cir. 1990)). It is undisputed that Johnson complained to
Cort Furniture's management about what she believed constituted
discriminatory practices at Cort Furniture. Thus, Johnson's
numerous complaints about discrimination and her refusal to
"gather" more derogatory information to place in Aman's file
following Aman's termination, separate and apart from her failure
to attend the deposition, represent activities protected under
Title VII.
But the fact that her discharge did not immediately
follow these activities does not undermine her claim. We have
held that the "mere passage of time is not legally conclusive
proof against retaliation." Robinson v. S.E. Pa. Transp.
Authority, 982 F.2d 892, 894-95 (3d Cir. 1993) (holding that the
evidence was sufficient to demonstrate retaliation for activities
that occurred two years prior to the termination). The issue
remains whether a reasonable jury could conclude that Johnson was
discharged because she engaged in protected activity. Cort
Furniture has offered a facially legitimate reason for her
discharge (her failure to attend the deposition), but has failed
to demonstrate that Johnson cannot produce direct or indirect
evidence to support her claim. Chipollini, 814 F.2d at 899. To
the contrary, Johnson has provided sufficient circumstantial
evidence so that a reasonable jury could conclude that she was
retaliatorily discharged. First, there is undisputed evidence
that Johnson complained about discrimination at Cort Furniture.
It is also undisputed that Johnson complained that Aman in
particular had been treated unfairly, and that she repeatedly
refused to "gather" more derogatory information against Aman so
Cort Furniture "could win the case against her." App. at 115-16.
It is also undisputed that Johnson was fired after she
failed to appear for the deposition concerning Aman's employment
at Cort Furniture. Cort Furniture's explanation for Johnson's
dismissal was that her failure to attend the deposition was
evidence of disloyalty. On the day she missed the deposition,
she was told that "[y]ou have proven you are not loyal to this
company, because of that I have to release you." App. at 2. It
is worth noting that Johnson was not told that she was fired for
insubordination or failing to comply with the company's internal
policies. Instead, the contemporaneous reason offered for her
discharge was disloyalty. In light of this evidence, Cort
Furniture's decision to terminate Johnson could be seen as making
good on Newton's threat to "come up there and get rid of all of
you."
Moreover, Johnson has provided evidence which casts
doubt upon Cort Furniture's reliance upon the deposition incident
as the sole basis for her firing. Specifically, Johnson
testified that she called various employees in Cort Furniture's
Human Resources Department to inform them that she was willing to
participate in a deposition but wanted to consult with an
attorney and with human resources. Johnson testified that "I
told [Kim Martin] . . . that I wanted to talk to my attorney
before I went, and I wanted to talk to human resources before I
went. She said `fine, keep in mind they will keep asking you to
take the deposition.' I said, `I don't have a problem with that
as long as I know what my rights are.'" App. at 3. Cort
Furniture failed to offer any evidence to rebut this testimony.
Thus, there is evidence from which a reasonable jury could
conclude that Cort Furniture was aware that Johnson did not
refuse to participate in the internal investigation, but merely
requested some time to understand the nature of the proceedings
in which she was asked to participate. In light of this evidence
and drawing all inferences in Johnson's favor, a reasonable jury
could conclude that there was no disloyalty and that Cort
Furniture's proffered reason is a pretext to mask a retaliatory
motive.
Finally, the fact-finder would be entitled to consider
all of the evidence of a hostile environment in order to
determine the reason for Johnson's firing. Evidence of
discrimination against other employees or of a hostile work
environment is relevant to "whether one of the principal non-
discriminatory reasons asserted by [an employer] for its actions
was in fact a pretext for . . . discrimination." Glass v.
Philadelphia Elec. Co., 34 F.3d 188, 194. (3d Cir. 1994); Estes
v. Dick Smith Ford, Inc., 856 F.2d 1097, 1104 (8th Cir. 1988)
("Evidence of prior acts of discrimination is relevant to an
employer's motive even where this evidence is not extensive
enough to establish discriminatory animus itself."). See alsoHeyne v.
Caruso, 69 F.3d 1475, 1480 (9th Cir. 1995) (alleged
sexual harassment of other employees other than plaintiff is
relevant to prove employer's motive); EEOC v. Farmer Bros. Co.,
31 F.3d 891, 897-98 (9th Cir. 1994) (evidence of employer's
sexual harassment of female employees other than the plaintiff
and evidence of disparaging remarks about women in general were
relevant to determine motive). As we have recognized, "an
atmosphere of condoned [racial] harassment in the workplace
increases the likelihood of retaliation for complaints in
individual cases." Glass, 34 F.3d at 195 (quoting Hawkings v.
Hennepin Technical Center, 900 F.2d 153, 156 (8th Cir. 1990)).
Viewed in the light most favorable to Johnson, a reasonable jury
could conclude that given her exemplary employment history and
the general evidence of a hostile environment, Johnson was fired
because she had protested discrimination at Cort Furniture, and
Cort Furniture believed that her hesitancy to attend the
deposition meant that she would continue to complain of
discrimination and testify against Cort Furniture in Aman's EEOC
investigation.
D. Unequal Pay.
The final claim raised by Aman and Johnson is a claim
of discriminatory pay. As the district court correctly notes, in
order to establish a case of unequal pay, plaintiffs must
demonstrate "that [they] were performing work substantially equal
to that of [white employees] who were compensated at [] higher
rate[s] than [they were]." Hohe v. Midland Corp., 613 F. Supp.
210, 214 (E.D. Mo. 1985), aff'd without op., 786 F.2d 1172 (8th
Cir. 1976). To support their claim that they were paid less than
white employees, Aman and Johnson rely almost exclusively on a
comparison of Cort Furniture employees' job grade levels. With
the exception of a single individual, Aileen Wilson who performs
the same job as Johnson in a different office, they did not
provide any evidence to demonstrate that the jobs performed by
the white employees were the same or that the employees had
similar credentials. Cort Furniture responded by providing
evidence that an employee's pay was not solely determined by job
grade level, but by job duties and the differences in pay
structure among the sales, warehouse, and administrative staff.
Aman and Johnson have offered no evidence to rebut Cort
Furniture's explanation, and at oral argument, they conceded that
with the exception of the difference in pay between Johnson and
Wilson, Cort Furniture's explanation of the pay differential
between individuals with the same job grade was reasonable.
With respect to the pay disparity between Johnson and