2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-25-2010

Brooke Grassmyer v. Shred-It USA Inc

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3876

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-3876

_____________

BROOKE R. GRASSMYER; PATRICIA A. MCGRANE;

LYNNE A. RYAN, 

 Appellants,

v.

SHRED-IT USA, INC.

 

_______________

On Appeal from the United States District Court

for the Western District of Pennsylvania

 (D.C. No. 07-cv-098)

District Judge: Honorable Kim R. Gibson

_______________

Argued: July 14, 2010

Before: RENDELL, JORDAN, and GREENAWAY, JR., Circuit Judges.

(Filed : August 25, 2010)

_______________

Stephen D. Wicks [ARGUED]

109 Lakemont Park Blvd.

Altoona, PA 16602

Counsel for Appellants

Christopher J. Davis

Sherrard, German & Kelly

620 Liberty Avenue - 28 Fl. th

Pittsburgh, PA 15222
2

Gregory G. Pinski [ARGUED]

Conner & Pinski

520 Third Avenue North

P.O. Box 3028

Great Falls, MT 59403

Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Lynn Ryan, Patricia McGrane, and Brooke Grassmyer (collectively the

“Plaintiffs”) appeal from an order of the United States District Court for the Western

District of Pennsylvania granting summary judgment in favor of Plaintiffs’ former

employer Shred-It USA, Inc. (“Shred-It”) with respect to Plaintiffs’ claims of gender

discrimination and Ryan’s and McGrane’s claim that they were subjected to a hostile

work environment, all having been brought pursuant to Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000e-1 et seq. For the reasons that follow, we will affirm the

District Court’s order with respect to Ryan’s and McGrane’s hostile work environment

claim and Grassmyer’s gender discrimination claim, but will vacate with respect to

Ryan’s and McGrane’s gender discrimination claims.

I. Factual Background

Shred-It is a company that provides two types of document destruction services: 

an ongoing “automatic” service at intervals specified by the customer and a one-time
 Vaniel began working at Shred-It as a sales representative and was later promoted to 1

sales representative supervisor. 

3

“purge” service. To sell its services, Shred-It employs sales representatives who are

assigned to various sales territories and tasked with developing and maintaining clients. 

Plaintiffs were all employed as sales representatives in Shred-It’s Pittsburgh,

Pennsylvania office. Ryan was employed from May 2, 2005 until September 9, 2005,

when she was terminated for failing to meet sales quotas. McGrane was employed from

February 1, 2005 until January 13, 2006, when she was terminated for failing to meet

sales quotas. Grassmyer was employed from May 23, 2005 until January 25, 2006, when

she voluntarily resigned. All of the Plaintiffs’ positions were ultimately filled with male

sales representatives. 

During Plaintiffs’ employment, Gino Laspina was Shred-It’s general manager, and

Kevin Mitchell and David Vaniel were Shred-It’s sales representative supervisors. ShredIt also employed the following seven male sales representatives during Plaintiffs’

employment at Shred-It: Dana Stephens; David Vaniel; Larry Bowser; Jack Papson; 1

David Peters; Nick Pavlecic; and Dennis Milavec. Of the seven male sales

representatives, only Peters was terminated. However, of the eleven sales representatives

Shred-It has terminated over the last five years for failing to meet the sales quotas, seven

were male and four were female. 
4

Plaintiffs do not dispute that they failed to meet the sales quotas established by

Shred-It. Their claims are based upon the allegedly discriminatory manner in which

Shred-It enforced its sales quotas, trained sales representatives, and assigned sales

territories, and based on an overall “men’s club” atmosphere on the job. For their hostile

work environment claim, Ryan and McGrane point particularly to comments made by

Mitchell that they describe as sexually explicit, profane, and vulgar. The factual

allegations underlying the Plaintiffs’ claims are discussed in greater detail below.

A. Enforcement of Quotas 

Shred-It’s sales representatives were required to achieve the following sales

targets: 10 appointments per week, 10 new automatic clients per week, $1,190 of

automatic revenue per month, 50 cold calls per week, 150 teleprospecting calls per week,

5 referrals per week, and 5 client care calls per week. “Automatic clients” are those who

sign up for automatic service at specified intervals, and their accounts generate

“automatic revenue.” New automatic revenue sales were the key business indicator and

standard of success for sales representatives at Shred-It. 

i. Plaintiffs’ Performance and Treatment

Ryan began working at Shred-It on May 2, 2005. On July 19, 2005, having

generated approximately $250 of new automatic revenue during her first two and one-half

months on the job, Ryan received a written warning, indicating that she needed to

improve her performance. She was also placed on a Performance Action Plan (“PAP”),
5

which specified certain sales goals and the dates by which she was required to accomplish

them. On September 9, 2005, just four months after she began working at Shred-It, Ryan

was terminated for failing to meet the specified sales requirements. At the time of her

termination, Ryan had sold $956 in automatic revenue (approximately $36.76 per week). 

McGrane began working at Shred-It on February 1, 2005. On September 9, 2005,

Shred-It provided McGrane with a performance evaluation, indicating that she was not

meeting her sales quota. At the time, McGrane had been working at Shred-It for

approximately eight months and had sold $1,940 in new automatic revenue. On

December 20, 2005, Laspina met with McGrane to discuss her performance, and Vaniel

later provided her with another written warning, which detailed her sales performance

deficiencies and placed her on a PAP. McGrane’s PAP required her to meet certain goals

over the next two weeks, notwithstanding the fact that December is, according to

McGrane, a slow sales period for Shred-It’s services, given the end-of-year holiday

season. 

After failing to meet the requirements identified in the December 20, 2005 written

warning and PAP, McGrane received another written warning on January 9, 2006,

instructing her to meet the required sales numbers by January 13, 2006 and informing her

that she would be terminated if she failed to achieve the specified sales requirements by

that date. On January 13, 2006, having not satisfied the requirements identified in the

December 20, 2005 and January 9, 2006 written warnings, McGrane was terminated. At
6

the time of her termination, McGrane had sold $3,762 in new automatic revenue

(approximately $85.50 per week). 

Grassmyer began working at Shred-It on May 23, 2005. On October 10, 2005, she

received a performance evaluation notifying her that she had not satisfied the sales quota

for new automatic revenue. Grassmyer quit her job at Shred-It on January 25, 2006. She

claims that she had no choice but to quit because her working conditions had become

intolerable, specifically because Shred-It had advertised a sales position on the internet

that covered her territory and she had received emails that were negative and aggressive,

and also because McGrane had recently been terminated. However, Grassmyer concedes

that she was never told that she would be terminated. She also concedes that the allegedly

negative and aggressive emails she received, which focused on increasing sales

performance, were sent to all sales representatives and were gender neutral, except for the

use of the word “team,” which she believes to have a male connotation. 

After leaving Shred-It, Grassmyer accepted a position with Laurel Medical

Supplies, which paid a higher salary. During her deposition, Grassmyer testified that she

did not contact her new employer or contemplate leaving Shred-It until January 20, 2006,

when she saw that her sales territory was being advertised on the internet. However,

personnel records from Laurel Medical Supplies indicate that Grassmyer contacted Laurel

Medical Supplies on December 30, 2005 and interviewed with the company on January 5,

2006. 
7

ii. Male Sales Representatives

Plaintiffs point to the performance of male sales representatives Bowser, Papson,

and Pavlecic, in support of their allegation that Shred-It applied the sales quotas unevenly

to men and women. Bowser worked as a sales representative at Shred-It from July 18,

2005 until August 28, 2006, when he voluntarily resigned his position at Shred-It to

accept a job with another company. During his first three months at Shred-It, Bowser

generated no automatic revenue. But, unlike Ryan, who received a written warning and

PAP for failing to meet the sales quota after working at Shred-It for only two and onehalf months and generating $250 in new automatic revenue, Bowser did not receive any

such warnings about his performance and was not placed on a PAP. In 2005, Bowser

generated a total of $3,781 in new automatic revenue (approximately $164 per week). 

Pavelecic worked as a sales representative at Shred-It from July 18, 2005 until

October 2, 2006, when he voluntarily resigned. Pavelecic acknowledges that, like the

Plaintiffs, he was not meeting his sales quota and should have therefore been given a

PAP. However, Pavelecic was not placed on a PAP, despite his poor sales performance. 

In 2005, Pavelecic generated a total of $659 in new automatic revenue (approximately

$28.65 per week). 

Papson worked as a sales representative at Shred-It from March 21, 2005 until

February 21, 2006. Like the Plaintiffs, Papson also was not meeting his performance

requirements. Shred-It claims that Papson resigned under the threat of termination for
8

poor sales performance after receiving a written warning. However, Papson testified at

his deposition that he did not recall receiving a written warning or being threatened with

termination due to his poor sales performance, though he believes that he may have been

warned informally at some point. He also testified that he left Shred-It of his own accord

for financial reasons. In 2005, Papson generated a total of $3,412 in new automatic

revenue (approximately $83.21 per week). 

B. Training

Training at Shred-It consisted of (1) taking the sales representative training

program during the first week of employment, which included video and online training,

(2) working in the field with supervisors, and, for some, (3) attending an Advanced Sales

Training program (“AST”) in Toronto. Plaintiffs do not dispute that they received equal

training during the one-week sales representative training program. Rather, they allege

that Shred-It discriminated against them with regard to field training and the AST. 

During a “ride-along,” sales representatives were accompanied in the field

throughout the day by either Mitchell or Vaniel. As Vaniel stated, the purpose of a ridealong is to “[r]ide with [the sales representatives], see if there is any issues that they’re

having, any problems that they’re facing, and also to see if there is any help that they need

as far as .. coaching ... [and] how they’re actually doing their presentations and going

through the sales process.” (App. at 564-65.) Laspina decided how many ride-alongs

each sales representative would receive, while the sales supervisors, Mitchell and Vaniel,
9

decided between themselves which sales representatives they would accompany. The

protocol for ride-alongs was for each sales representative to be given one ride-along per

month. More time was spent with new sales representatives. 

Laspina directed six ride-alongs for male sales representative Milavec during his

first month as a sales representative at Shred-It. In contrast, McGrane never received

more than two ride-alongs in any given month. She also claims that Mitchell failed to

attend scheduled ride-alongs with her on two occasions and that, on two other occasions,

he showed up but then cut the ride-along short. McGrane and Grassmyer both claim that

Vaniel also failed to attend scheduled ride-alongs with them and that, when he did attend

ride-alongs, he failed to provide them with feedback. 

Ryan was supposed to be trained by Mitchell. However, she claims that during her

time at Shred-It, Mitchell accompanied her in the field only twice and that, despite her

repeated requests for training and assistance, her last ride-along took place on June 22,

2005, approximately two and one-half months prior to her termination. Ryan claims that

on at least five occasions, she requested assistance and training from Mitchell and was

denied, and that Mitchell frequently cancelled their scheduled meetings with little or no

notice, for reasons such as being “too hung over.” (App. at 770.) 

Laspina did not recall any of the male sales representatives complaining that

Mitchell or Vaniel had failed to conduct ride-alongs with them. Nor could male sales

representatives Bowser, Pavlecic, or Peters recall ever having such problems. Further, in
10

addition to the ride-alongs, Bowser was permitted to shadow Stephens (who had become

a top-selling sales representative) and Vaniel on several of their sales calls. Mitchell also

permitted Bowser to shadow him on several of Mitchell’s appointments, and

accompanied Bowser to several of Bowser’s appointments when Bowser first started

working at Shred-It. Plaintiffs claim that they were not allowed to shadow Vaniel,

Stephens, or Mitchell on sales calls. 

Moreover, unlike their female counterparts, the male sales representatives felt that

they were given valuable feedback during their training sessions, and that it helped them

learn the business and become better sales representatives. Milavec stated that “[Vaniel]

would really do a wonderful job, and ... was able to look through his knowledge and

somehow give some different angles on being able to close a sale.” (App. at 581.) 

Likewise, Bowser stated that Vaniel’s training “really helped me learn the business and

what to do.” (App. at 719-20.) 

Regarding AST, Laspina said it was “quite costly” and he “let [the sales

representatives] know that unless ... you are selling new auto revenue to justify that type

of training and the cost that we, we wouldn’t be sending everybody.” (App. at 520.) 

While none of the Plaintiffs were selected to attend the AST, two male sales

representatives were: Vaniel (who was a sales representative at the time and later

promoted to sales manager) and Stephens. McGrane claims that Mitchell originally told

her that she had been selected to attend AST in September 2005 and that, during a general
11

sales meeting, Mitchell announced that McGrane and Vaniel would both be attending

AST together in October or November 2005. According to McGrane, Vaniel then asked,

“Do we have to go together? Can I trade with someone else?” (App. at 754.) Shred-It

subsequently sent Vaniel to AST but declined to send McGrane. 

C. Territories

Laspina was responsible for making territory assignments and allocations, which

changed frequently, with territories expanding as sales representatives left the company

and contracting as new sales representatives were hired. Plaintiffs claim that Shred-It

discriminated against them on the basis of sex by failing to notify them of sales territory

openings and by assigning the more desirable sales territories, such as downtown

Pittsburgh, to men. Specifically, McGrane contends that her poor performance is

attributable, in part, to the fact that she was not assigned to the downtown Pittsburgh sales

territory, while male sales representatives who were hired after her were given portions of

that territory. When McGrane was hired on February 1, 2005, she was assigned to a large

geographical territory that did not include any portion of downtown Pittsburgh. When

Vaniel was hired a month later, he was given a large portion of the downtown Pittsburgh

territory, from which he recruited some of his biggest customers. According to Laspina,

McGrane had not been considered for that territory prior to Vaniel’s arrival at Shred-It

because he wanted her to prove herself. When Vaniel was promoted to sales
12

representative supervisor, his downtown territory was given to Pavlecic and Milavec, both

of whom began working at Shred-It after McGrane. 

On or about December 12, 2005, a large portion of one of McGrane’s better

territories was taken from her and given to Milavec, who had recently been hired. Prior

to the change and without McGrane’s knowledge, Milavec was notified that he would be

given that portion of McGrane’s territory and told by Vaniel to “[j]ust keep it on the

hush.” (App. at 591.) Laspina and Vaniel offered conflicting explanations for the

decision to give Milavec part of McGrane’s territory. Laspina, who claims that he alone

made the decision, stated that “we were not generating any income or revenue from that

marketplace that I felt had a tremendous amount of opportunity, so that’s the reason why I

moved some zip codes around.” (App. at 517.) In contrast, Vaniel claims that he and

Laspina made the decision together and that it was done only for logistical reasons, not

because of McGrane’s poor sales performance. 

Shred-It disputes the Plaintiffs’ assertion that some sales territories are better than

others. According to Laspina, “every territory is a good sales territory. It is what the

sales representative makes of that territory.” (App. at 517.) With respect to the

downtown sales territory specifically, Vaniel stated that selling downtown involves “a lot

of wheel-spinning and it’s a lot of activity for – in my opinion, little results.” (App. at

109-10.) Likewise, Pavlecic and Milavec believed that, while the downtown territory
13

may have had “more prospects,” meeting the sales requirements downtown is “every bit

as hard” as other areas and that “business is business.” (App. at 579.) 

On the other hand, Peters testified that it was easier to meet the sales requirements

in the downtown territory because the “[c]oncentrated business in town [made it] easy to

get around without having a lot of down time ... driving from your location to a new

territory.” (App. at 699.) Likewise, while at one point in his deposition, Milavec claimed

that the downtown territory was no better than other territories, he later conceded that

“[downtown] would be easier, because you ... could knock out a lot of your quota in just

one or two days down here, versus having a territory out in Washington [County] or

another area.” (App. at 579-80.) Stephens also disagreed with the notion that all sales

territories were equal. He testified that, when Laspina offered him a new sales territory in

the Fall of 2003 shortly after being hired, he “grabbed it” because he believed that the

new territory had more sales opportunities. (App. at 604-05.) 

Shred-It also claims that the only reason that the Plaintiffs were not assigned to the

allegedly more desirable sales territories is they never requested such territories.

According to Laspina, territory openings were communicated to all sales representatives

during sales meetings, and he “used to tell everybody, if a territory does open, I really

look for the salesperson to take that initial step to come to me and say, hey, I really want

this because I can do it.” (App. at 517.) Thus, Laspina claims that the only reason that he
14

did not give any portion of the downtown territory to McGrane or Ryan is they never

asked for it. 

In contrast to Laspina’s testimony, Plaintiffs claim that no one at Shred-It ever

notified them of territory openings, or told them that they could apply for certain

territories, or offered them desirable territories. With respect to the sales territory opening

that was given to Stephens in the Fall of 2003, Stephens did not recall Laspina

announcing the opening to all the sales representatives at a sales meeting, as Laspina

claims he did whenever an opening arose, and Shred-It gave the portion of McGrane’s

sales territory to Milavec without notifying other sales representatives who may have

been interested in the territory and without Milavec coming to Laspina and asking for the

territory. 

D. “Mens’ Club” Culture at Shred-It

During his deposition, Milavec described Shred-It’s culture as “sort of like a

‘men’s club.’” (App. at 589-90.) He explained that, in his opinion, “it was two offices,

as far as the way the guys were treated and the way the girls were treated,” (App. at 587),

that “there were ... different sets of rules for some of the guys,” (App. at 592), and that

things were not quite “even Steven” among the men and the women. (Id.) Specifically,

Milavec felt that Papson and Pavlecic were subject to a different set of rules in that they

were allowed to “come and go as they pleased,” (Id.), and that, in his opinion, Shred-It

had discriminated against McGrane on the basis of her sex by taking away a portion of
15

her sales territory and giving it to him. However, Milavec also admitted that his

observations did not necessarily have “backing behind it.” (App. at 589.)

E. Facts Regarding Ryan’s and McGrane’s Hostile Work Environment Claim

Ryan and McGrane also claim that they were subjected to sexually explicit and

inappropriate comments from Mitchell. Specifically, they allege that Mitchell regularly

made comments about the size of his genitalia and about the intimate details of his sexual

relationships, that he referred to women as “bitches” (App. at 503-04), that he told them

of a colleague frequenting “titty bars” and getting “tanked,” (App. at 772), and that he

frequently used the word “fuck” in the office. Plaintiffs also allege that, while Ryan and

other sales representatives were organizing binders in the conference room of Shred-It’s

Pittsburgh office, Mitchell once played a compact disc on his laptop computer that

included sexually explicit language, and that he once asked a male sales representative,

Stephens, if he had a pubic hair stuck in his throat after Stephens had coughed during a

sales meeting. 

II. Procedural Background

Plaintiffs filed their complaint on April 27, 2007. All of the Plaintiffs alleged that

Shred-It discriminated against them on the basis of gender, with Grassmyer alleging

constructive discharge. Ryan and McGrane also alleged a hostile work environment. On

January 12, 2009, Shred-It filed its motion for summary judgment, which the District

Court granted on September 4, 2009. 
16

In analyzing Plaintiffs’ gender discrimination claims, the District Court applied the

three-step, burden-shifting framework set forth by the Supreme Court in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). The Court held that the Plaintiffs

had established a prima facie case because they were qualified and they were all replaced

with male sales representatives but that Shred-It had satisfied its burden of articulating a

legitimate non-discriminatory reason for terminating the Plaintiffs, namely, that they

failed to meet the sales quotas required of all sales representatives. 

At the pretext stage, Plaintiffs argued that the non-discriminatory reason advanced

by Shred-It was unworthy of belief because Shred-It did not terminate male sales

representatives who were performing comparably or even worse than they were, applied

the sales quotas unevenly among male and female sales representatives with respect to

discipline and PAPs, and discriminated on the basis of sex in matters such as training,

territory assignments, and performance requirements. The District Court ultimately held

that no reasonable factfinder could conclude that the reasons advanced by Shred-It for its

actions were pretextual. 

The Court held that despite the claimed inconsistencies in enforcement of the sales

quotas, the fact that, over the last five years, Shred-It had terminated seven male sales

representatives and only four female sales representatives for failing to meet the sales

requirements “would prevent any rational trier of fact from conceivably finding that the

Plaintiffs ... were terminated because of their gender.” (App. at 18.) With respect to the
17

allocation of sales territories, the Court held that, while “[w]hether downtown Pittsburgh

was, in fact, an easier area to makes [sic] sales in remains a disputed question of fact,”

“[a] reasonable factfinder simply could not find that Plaintiffs were denied access to

territories in which they could meet their sales quotas” because “Plaintiffs never

requested to be moved to a better territory.” (App. at 19.) Further, “[t]hat Plaintiffs were

not offered a better area is not enough to show that they were set up to fail or establish

pretext.” (App. at 19.) Finally, with respect to training, the Court held that “[e]ven if it is

assumed, taking the facts in the light most favorable to the Plaintiffs, that they received

less training and assistance than other male employees, Plaintiffs still present no evidence

whatsoever that the cancellations by Mr. Mitchell or the lesser training from Mr. Vaniel

occurred because of invidious gender discrimination.” (App. at 20.) The Court also

reasoned that “the existence of any discrimination is particularly questionable given that

Mr. Papson encountered cancellations from Mr. Mitchell as well.” (App. at 20.) 

As to their hostile work environment claim, Ryan and McGrane argued that, when

combined with Shred-It’s mistreatment of them with respect to training, territory

assignments, and enforcement of the sales quotas, Mitchell’s conduct created a hostile

work environment based upon gender. The District Court held that no reasonable trier of

fact could find that Ryan and McGrane were subjected to a hostile work environment

because even the combined effect of Mitchell’s conduct and the other alleged
 The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331, and 2

42 U.S.C. § 2000e-5(f)(3). We have jurisdiction pursuant to 28 U.S.C. § 1291. 

18

mistreatment did not establish severe or pervasive harassment that would alter the

conditions of their employment. 

Plaintiffs filed a timely notice of appeal on September 9, 2009. 

III. Discussion2

We exercise plenary review over orders granting summary judgment. Lauren v.

DeFlaminis, 480 F.3d 259, 265-66 (3d Cir. 2007). Thus, we look to see whether there is

any genuine issue of material fact and whether the moving party is entitled to judgment as

a matter of law. Id. at 266. In determining whether summary judgment is warranted, we

review the facts in the light most favorable to the non-moving party, and draw all

reasonable factual inferences in the party’s favor. Id. 

A. Gender Discrimination Claims

When there is no direct evidence of discrimination, a Title VII claim of gender

discrimination is analyzed according to the three-step, burden-shifting framework set

forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). At the first

step, the plaintiff bears the initial burden of establishing a prima facie case by a

preponderance of the evidence. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir.

2003). As originally set forth in McDonnell Douglas, the elements of a prima facie case

required a claimant to show “(i) that he belongs to a ... minority; (ii) that he applied and

was qualified for a job for which the employer was seeking applicants; (iii) that, despite
19

his qualifications, he was rejected; and (iv) that, after his rejection, the position remained

open and the employer continued to seek applicants from persons of complainant’s

qualifications.” McDonnell Douglas, 411 U.S. at 802. As an alternative to the original

fourth prong of the prima facie case, a plaintiff may show that similarly situated

individuals outside the plaintiff’s class were treated more favorably. Matczak v.

Frankford Candy & Chocolate Co., 136 F.3d 933, 939-40 (3d Cir. 1997); Olson v. Gen.

Elec. Astrospace, 101 F.3d 947, 951 (3d Cir. 1996). 

We agree with the District Court that Ryan and McGrane established their prima

facie case because they are female, qualified to be sales representatives, were discharged,

and were replaced with male sales representatives. However, the District Court erred in

holding that Grassmyer had also established a prima facie case because, unlike Ryan and

McGrane, Grassmyer was not terminated and therefore does not satisfy the third

requirement of the prima facie case. Moreover, with respect to Grassmyer’s claim of

constructive discharge, the work conditions she complains of (i.e., advertising her sales

territory on the internet, negative and aggressive emails, and the termination of her coworker McGrane) are wholly inadequate to show that “the abusive working environment

became so intolerable that her resignation qualified as a fitting response.” Pennsylvania

State Police v. Suders, 542 U.S. 129, 134 (2004). Accordingly, Grassmyer cannot

succeed on her discrimination claim.
 More precisely, when the question is, as it is here, one of pretext, the plaintiff must 3

show that the unlawful discrimination was a determinative factor. See Watson v.

Southeastern Pennsylvania Transp. Authority, 207 F.3d 207, 215 (3d Cir. 2000) (“[I]n the

usual ‘pretext’ case, ... consideration of a protected trait must be shown to be a

determinative factor in the adverse action.”).

20

As for Ryan and McGrane, since they established a prima facie case of

discrimination, “the burden of production shift[ed] to the defendant to articulate some

legitimate, nondiscriminatory reason for the employee’s rejection.” Fuentes v. Perskie,

32 F.3d 759, 763 (3d Cir. 1994). “The employer satisfies its burden of production by

introducing evidence which, taken as true, would permit the conclusion that there was a

nondiscriminatory reason for the unfavorable employment decision.” Id. Shred-It

satisfied its burden at this stage by adducing evidence that Plaintiffs were terminated due

to their failure to meet the sales quotas required of all sales representatives at Shred-It. 

At the third stage, to avoid summary judgment, “[t]he plaintiff must point to some

evidence, direct or circumstantial, from which a factfinder could reasonably either (1)

disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious

discriminatory reason was more likely than not a motivating or determinative cause of the

employer’s action.” Id. at 764. To discredit the employer’s proffered reason, a plaintiff 3

must “demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its action that a

reasonable factfinder could rationally find them unworthy of credence and hence infer

that the employer did not act for the asserted non-discriminatory reasons.” Id. at 765
21

(citations and quotations omitted). We have listed the following examples of evidence

from which a factfinder could reasonably conclude that an illegitimate factor was more

likely than not a determinative cause of the adverse employment decision: “showing that

the employer in the past had subjected [the plaintiff] to unlawful discriminatory treatment,

that the employer treated other, similarly situated persons not of [plaintiff’s] protected

class more favorably, or that the employer has discriminated against other members of

[the plaintiff’s] protected class or other protected categories of persons.” Id. at 765. 

The Supreme Court has held that where the legitimate nondiscriminatory reason

advanced by the employer pertains to the employee’s subpar performance or lack of

qualifications, pretext may be shown by demonstrating that the employer failed to

properly train the employee. Patterson v. McLean Credit Union, 491 U.S. 164, 188

(1989) (“[P]etitioner could seek to persuade the jury that respondent had not offered the

true reason for its promotion decision by presenting evidence of respondent’s ... failure to

train her for an accounting position.”). We also have “recognized that when an employer

discriminatorily denies training and support, the employer may not then disfavor the

plaintiff because her performance is affected by the lack of opportunity.” Ezold v. Wolf,

Block, Schorr & Solis-Cohen, 983 F.2d 509, 540 (3d Cir. 1993). 

Ryan and McGrane argue that the District Court erred at the pretext stage by

“overlook[ing] reasonable inferences of discrimination arising from largely unexplained

differences in treatment, and fail[ing] to consider the evidence in its entirety.” 
22

(Appellants’ Op. Br. at 21-22.) We agree. While it is undisputed that Plaintiffs were not

meeting their sales quotas, they have produced evidence, which, when viewed in the light

most favorable to them, would permit a rational jury to conclude that Shred-It

discriminated against them in ways that affected their ability to meet the sales quotas and

that Shred-It applied the sales quotas unevenly among male and female sales

representatives. 

As to training and territories, the evidence, when viewed in Ryan’s and McGrane’s

favor, raises material issues of fact as to whether gender discrimination was the

determinative factor in Shred-It’s actions. The evidence indicates that, despite their

requests for training and assistance, Ryan and McGrane were denied the same

opportunities as the male sales representatives with respect to ride-alongs and shadowing

opportunities. The evidence also can be viewed as indicating that certain territories

offered greater sales opportunities than others, and that Ryan and McGrane were not

notified of territory openings or given the same opportunities as men to move into

desirable geographic areas.

Moreover, Ryan and McGrane have demonstrated “weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions” in Shred-It’s proffered reasons for their

sales territory allocations. Laspina’s assertion that he alone decided to give Milavec a

portion of McGrane’s territory and that he did it because it “had a tremendous amount of

opportunity” (App. at 517), is in direct conflict with Vaniel’s assertion that the decision
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was made only for logistical reasons and that he and Laspina made the decision jointly. 

Laspina’s explanation also seems to suggest that some territories did, in fact, have more

opportunities than others, which contradicts his other assertion that a sales

representative’s ability to meet the sales quotas is not impacted by his or her sales

territory because “every territory is a good territory, [and] [i]t is what the sales

representative makes of that territory.” (App. at 517.) Moreover, while Laspina claims to

have notified all sales representatives of territory openings at sales meetings, Stephens did

not recall Laspina ever notifying the other sales representatives about the territory he was

given in the fall of 2003, and the secrecy with which McGrane’s territory was taken from

her and given to Milavec suggests that Shred-It assigned Plaintiffs to certain territories

without consulting them or notifying them of potential opportunities. 

Finally, there is evidence showing that the sales quotas were enforced more

harshly against Ryan and McGrane than they were against male sales representatives

Bowser, Pavlecic, and Papson. The District Court was unpersuaded by this evidence,

mostly because of the fact that over the course of the last five years, Shred-It has

terminated seven male sales representatives for failing to meet the sales quotas, as

compared with only four female sales representatives. However, Shred-It’s past

employment statistics say nothing about the training and territory allocations of the male

and female sales representatives who were terminated over the last five years or whether

Shred-It otherwise discriminated against women in ways that affected their ability to meet
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the sales quotas, as is alleged here. Furthermore, even if Shred-It’s employment statistics

conclusively showed that it had not discriminated against women in the past, that would

not immunize it from all present and future claims of gender discrimination. Ryan and

McGrane have presented more recent evidence indicating unequal treatment, and we must

view the evidence in the light most favorable to them at the summary judgment stage. 

In sum, Ryan and McGrane have presented sufficient evidence to survive summary

judgment, evidence that raises material factual issues about whether Shred-It treated

similarly situated male sales representatives more favorably than female sales

representatives when it came to enforcement of the sales quotas, training, and sales

territory allocations. That same evidence also raises material factual issues about whether

gender discrimination was a determinative factor in any such disparate treatment. In

addition, Ryan and McGrane have demonstrated substantial inconsistencies in some of

Shred-It’s proffered reasons for its treatment of the Plaintiffs. Accordingly, the District

Court erred in granting summary judgment in favor of Shred-It on Ryan’s and McGrane’s

gender discrimination claims.

B. Hostile Work Environment Claims

Title VII of the Civil Rights Act makes it unlawful for an employer to condone a

sexually hostile work environment. 42 U.S.C. § 2000e-2(a)(1); Meritor Savings Bank v.

Vinson, 477 U.S. 57 (1986). “Hostile work environment harassment occurs when

unwelcome sexual conduct unreasonably interferes with a person’s performance or
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creates an intimidating, hostile, or offensive working environment.” Weston v.

Pennsylvania, 251 F.3d 420, 425-26 (3d Cir. 2000). To be actionable, “the harassment

must be so severe or pervasive that it alters the conditions of the victim’s employment and

creates an abusive environment.” Id. at 426. We have developed a five step test with

respect to hostile work environment claims that requires McGrane and Ryan to show: “(1)

[they] suffered intentional discrimination because of their sex; (2) the discrimination was

pervasive and regular; (3) the discrimination detrimentally affected [them]; (4) the

discrimination would detrimentally affect a reasonable person of the same sex in that

position; and (5) the existence of respondeat superior liability.” Andrews v. City of

Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990). 

Plaintiffs conceded in the District Court that, standing alone, Mitchell’s comments

are not sufficient to show a hostile work environment. We agree. While sophomoric and

no doubt offensive, Mitchell’s language was not, by Ryan’s and McGrane’s own

admission and by the evidence produced, so “severe or pervasive” as to support a hostile

work environment claim. Penn. State Police v. Suders, 542 U.S. 129, 133 (2004). Even

when combined with their other complaints, there is an insufficient showing of

harassment to be actionable. While Ryan and McGrane may have been neglected and

treated unequally, the treatment they received did not rise to the level of being abusive

and altering the conditions of the sales work at Shred-It. See Weston, 251 F.3d at 426

(“In order to be actionable, the harassment must be so severe or pervasive that it alters the
26

conditions of the victim’s employment and creates an abusive environment.”); Andrews v.

City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990) (“To bring an actionable claim

for sexual harassment because of an intimidating and offensive work environment, a

plaintiff must establish by the totality of the circumstances, the existence of a hostile or

abusive working environment which is severe enough to affect the psychological stability

of a minority employee”). 

IV. Conclusion

For the foregoing reasons, we will affirm the District Court’s order with respect to

Ryan’s and McGrane’s hostile work environment claim and Grassmyer’s gender

discrimination claim, but will vacate with respect to Ryan’s and McGrane’s claim for

gender discrimination under Title VII. The case is remanded for further proceedings

consistent with this opinion.