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
2

(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 (Argued)

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 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. 

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 sells 
4

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. 
5

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 
6

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 
7

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.

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). Newman v. Beard, 617 F.3d 775, 779 (3d Cir. 
8

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:
9

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 
10

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 
11

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. § 2000e5(e)(1) (defining time for filing a charge as 180 days, 
12

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. 
13

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. 
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 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 permanence3 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 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 

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. 
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 

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 
16

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 
17

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 
18

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. 
19

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 
20

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 emails 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. 
21

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. 
22

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 
23

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. 
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 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.

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.

CONCLUSION