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 Judges2 (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.3 Gail S. Coleman, Esquire (A rgued) Equal Employment Opportunity Commission

Room 5SW24L 131 M Street, N.E. Washington, D.C. 20507

Counsel for Amicus in support of Appellant

O P I N I O N

ROTH

, Circuit Judge

Shannon J. Mandel appeals the final judgment of the

District C ourt 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 . W e 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 op inion

. :

I.

A. Factual Background 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 sells4 packaging film. Mandel claimed that, th roughout 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,” “miss y,” “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 headquar ters, 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 Pre sident 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 Ern est Bacher t, 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.5 On April 6, 2007, during a meeting regarding sample orders, Bachert became ang ry, 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 disc riminated 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 policie s in the Employee Handbook but felt uncomfortable going to Conway or Schmal with her compl aints. Conway testified in his deposition that other than giving each employee a copy of the Employee Handbook, there was no training regarding discrimination or

sex ual harassment.

Although Mandel complained to Schmidt about being told to make coffee, she did not complain to her supervisor s 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 to6 jealous husbands who claimed Bachert made advances t o their wives. Mandel was never disciplined during her employment with M&Q.

B. Procedural Hi story

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 Dismis sal 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). Th e District Court found that Mandel had failed to

exhaust her administrative remedies because she indicated on7 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 d i spa rate and ultra extreme conduct” actionable

under an intentional infliction of emotional distress claim. The District Court, therefore, dismissed Counts I, I I, 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

inci dents 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.

A. Motion to Dismiss DISCUSSION

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). New man v. Beard , 617 F.3d 775, 779 (3d Cir.8 2010). We accept all factual allegations as true and construe the complai nt in the light most favorable to the plaintiff. Id.

A plaintiff “must exhaust all required administrative remedies before bringing a cl aim 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

d efined 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:9 Plaintiff’s complai nt 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 Co urt 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 u rges this

Court to construe t he Charge libera lly, 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 easi ly 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” an d again failed to check the box for

retaliation. Because Mandel failed to exhaust her remedies for any claims of retaliation, we will affirm the District10 Court’s dismissal of Counts I, II, an d 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 mate rial 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 , a n 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 mo re 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 comply11 with the PHRA.” We have previously addressed dual filing

with the EEOC and the P HRC, 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, h owever, 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 sufficie nt 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 it self 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

“de ferral state.” The District Court agreed that Pennsylvania

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

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

5(e)(1) (defining time for filing a charge as 180 days,12 enlarged to 300 da ys where the complainant initially instituted state proceedings). The District Court properly rejected Mandel’s arg ument, however, because the 300

- day extended statute of limitations applies only to the C harge, not to the PHRA filing. See id. We conclud e that Mandel’s

PHRA claims a re 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 employ er 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 n ational 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 114.13 Discrete acts include , for example, “termination, failure to promote, denial of transfer, or refusal to hire.” 1 Id.

Under the continuing violation doctrine,

discri minatory acts that are not individually actionable may be aggregated to make out a h ostile 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 wit hin the statutory time period”)). A hostile work environment claim “is comp o sed 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; s ee 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 promo te in

2006 was a discrete act that was time barred because it occurred prior to Febr uary 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, 2006.14 least one act occurred within the filing period and that the

harassment is “more than the occurrence of isolated or sporadic acts of intentional di scrimin ation”).

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

ai d 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

2 We have defined subject matter as whether the violations constitute the same type of discrimination

. See Wes t , 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 , t he District Court applied the Berry factors and determined that Mandel’s claims met the subj ect

3 We have defined permanence as whether the nature of the violations should trigg er 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 applie s, but we find persuasive the EEOC’s argument to the contrary and write to clarify the continuing violation doctrine following Morgan

.15 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

doe s 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’ t he single unlawful practice ‘occurred.’ Given, therefore, that the incidents constituting a hostile work environment are part of one16 unlawful employment practice, the employer may be liable for all acts that are part of this single

claim. In order for th e charge to be timely, the employee need only file a charge within 180 or 300 days of any act that is part o f the

hostile work environment.

Morgan

, 536 U.S. at 117

- 18. It is clear that there is no longer

a permanency requirement under th e continuing viol ation

doctrine and that t he 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 procee d unde r 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 m any of the acts

that occurred prior to the applicable limitations period

in volved 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 o f the continuing violation for the hostile

work environment claim.

Furthermore

, t o 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 o f laches as a defense, but the17 District Court did not consider it. In light of our clarifi ed

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

laches defense , and the District Court sh ould 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.” Mer itor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 67 (1986). To succeed on a hostile work environment claim, th e plaintiff must establish that 1) the employee suffered intentional discrimination because of his/her sex, 2) the discrimination was severe or pervas ive, 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 Prod s. 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 elements18 of the hostile work environment claim that were heavily

c ontested 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 b ased on her sex.”

i. Scope of E vidence

First, s o

- called “m e 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 que stion 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 Prod ucts, Inc. , because the two employees were not employed by defendant M&Q Packaging but by defendant’s parent corporation

.

Second, t he EEOC argues that the District Court erred by disregarding three specific instances of harassment that

Mandel listed i n 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 attache d to a signed EEOC charge may raise genuine issues of material fact, see Liotta v.19 Nat’l Forge Co. , 629 F.2 d 903, 907 (3d Cir. 1980), the

District Court erred in excluding those incidents. On remand,

the District Court should consider whether th os e three

incidents are part of the continuing violation.

ii. “Severe or P ervasive”

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; wh ether 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 circums tances, rather than parse out the individual incidents

, to determine

whether the act s that collectively form the continuing violation are severe or pervasive

.

iii. “Detrimentally A ffected”

We agree with the District Court that an objectively reasonable person in Mandel’s place might be of fended by the alleged incidents . We are troubled, however, by the District20 Court’s conclusion that Mandel failed to show that she was detrimentally affe cted by the alleged incidents :

Here, Mandel only comp lained 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 impa ired. 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 demonst rate 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 s ubjective distress, a

reas onable jury could not find that Mandel has proven that the

harassment h ad a detrimental

effect on her.21 Although Mandel engaged in certain unprofessional conduct, the comments and conduct to which she was subject

w ere often worse and apparently uninvite d. 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 he r a “bitch” during a meeting and alleged in her sworn EEOC Charge and questionnaires t hat 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 S uperior

L iabilit y

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 h ostile 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.22 In sum, permanency is not required to show a continuing violation following Morgan , and w e thus reverse the District Court’s g rant of summary judgmen t 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 pr ima 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 qualif ied 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

di scharged 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. T o establish a constructive discharge, Mandel must show that “the employer knowingly23 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 10 74, 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

determin ing whether an employee was forced to resign, we

consider a number of factors, including whether the employee

was threat ened with discharge, encouraged to resign,

demoted

, subject to reduced pay or benefits, involuntarily transferred to a less desirable po sition, 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 pervasiv eness 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 lon ger 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.24 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 becau se 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 clas s
, 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.

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 r emand for further proceedings in accordance with this opinion. CONCLUSION