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

3
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

6
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:

8
 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

10
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.

13
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.

18
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.

20
 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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