1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-30-1996

Aman v. Cort Furniture

Precedential or Non-Precedential:

Docket 95-5142

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Recommended Citation

"Aman v. Cort Furniture" (1996). 1996 Decisions. Paper 185.

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 95-5142 

 ___________ 

 CAROL AMAN; JEANETTE JOHNSON 

 Appellants, 

 vs. 

 CORT FURNITURE RENTAL CORPORATION 

 Appellee. 

 ___________ 

 APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF NEW JERSEY 

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

 ___________ 

 ARGUED JANUARY 24, 1996 

 BEFORE: STAPLETON, MANSMANN and LEWIS, Circuit Judges. 

 (Filed May 30, 1996) 

 ___________ 

Ian Stuart 

Daniel J. DeLuca (ARGUED) 

510 White Horse Pike 

Audobon, NJ 08106 

 Attorneys for Appellants 

Michael J. Vassalotti 

Brown & Connery 

360 Haddon Avenue 
Post Office Box 539 

Westmont, NJ 08108 

Edward Katze 

Constangy, Brooks & Smith 

230 Peachtree Street 

Suite 2400 

Atlanta, GA 30303 

Michael L. Blumenthal (ARGUED) 

Suite 2400 

230 Peachtree Street, N.W. 

Atlanta, GA 30303 

 Attorneys for Appellee 

 ___________ 

 OPINION OF THE COURT 

 ___________ 

LEWIS, Circuit Judge. 

 Carol Aman and Jeanette Johnson appeal from the 

district court's grant of summary judgment in favor of Cort 

Furniture Rental Corporation on their employment discrimination 

claims brought under Title VII of the Civil Rights Act of 1964, 

42 U.S.C.  2000e, et seq, and the New Jersey Law Against 

Discrimination, N.J. Stat. Ann. 10:5-12, et seq. They argue that 

the record contains evidence from which a jury could conclude: 

(1) that while employed at Cort Furniture, they were subject to a 

hostile work environment; (2) that Aman was constructively 

discharged; (3) that Johnson was discharged in retaliation for 

protesting discrimination at Cort Furniture; and (4) that black 

employees were paid less than similarly situated white employees. 

 For the reasons which follow, we will reverse the 

district court's grant of summary judgment as to Aman's and 

Johnson's hostile environment, constructive discharge and 

retaliatory discharge claims, and will affirm its judgment as to 

their unequal pay claims. 

 I. 

 Carol Aman and Jeanette Johnson, both black, were hired 

by Cort Furniture's Philadelphia district office in 1986. Aman 

was hired as a bookkeeper and Johnson was hired as a credit 

manager. Both Aman and Johnson claim that during their 

employment at Cort Furniture, they were subjected to an 

atmosphere of racial contempt and harassment. Aman claims that 

this resulted in her constructive discharge. Johnson claims that 

she was discharged in retaliation for complaining about Cort 

Furniture's discriminatory practices. 

 From 1986 through the termination of their employment 

in 1992, Aman and Johnson claim that co-workers and managers 

engaged in a pervasive and systematic pattern of harassment 
toward black employees. Aman and other black employees were 

referred to as "another one," "one of them," and "poor people." 

Aman was also the target of at least three false accusations of 

favoritism allegedly exhibited toward her by her black 

supervisor, as well as dereliction of duty. On several 

occasions, co-workers physically snatched documents from Aman's 

hands and stole time cards that she needed to perform her job. 

 This behavior, however, was not limited to Aman and 

Johnson's co-workers; it was engaged in by management as well. 

For example, both Aman and Johnson heard Allen Shuttleworth, 

Regional Vice-President of Cort Furniture, make disparaging 

racial remarks about their supervisor, Joyce Lampkin. On one 

occasion, Shuttleworth came into the office and asked the white 

employees on Lampkin's staff, "Where is that one in there?" 

 Despite this harassment, in 1989 Aman was promoted to 

the position of credit manager, and Johnson became supervisor of 

the administrative department after Lampkin moved to the sales 

department. As a credit manager Aman was responsible for 

approving credit and collecting on past due accounts. Cort 

Furniture salespeople were required to submit credit applications 

to a credit clerk, who would run a credit check in order to 

determine whether to grant credit to the customer. After these 

promotions, Johnson became Aman's immediate supervisor. In 

November of that year, Johnson received a letter from the 

president of Cort Furniture congratulating her for her 

outstanding performance and for the performance of the 

department. 

 Aman's new position as credit manager did nothing to 

increase the respect of her fellow employees. She continued to 

suffer harassment from white sales staff and management, 

including Karen Brady, Lisa Jentsch, Katie Gauthier, Laura 

Greathead, Chris Benzle, Robert Kurtz, and Barry Boswell. 

According to Aman, the general atmosphere of racial hostility 

"lead [sic] white employees to feel confident that what they said 

would be listened to over black and made the whites uncooperative 

and unsupportive to blacks." As examples, Aman and Johnson point 

to the fact that Benzle instructed Johnson to put a derogatory 

memorandum in Aman's personnel file because he wanted Aman "out." 

Brady, Jentsch, and Greathead bypassed Aman and extended credit 

to customers against Cort Furniture policy, and there is no 

evidence that any of them were reprimanded for their behavior. 

In addition, Boswell, the sales manager, continually ignored 

Aman's requests for information necessary to her job. He also 

allegedly harassed Aman and another black employee by making them 

do menial tasks which were not within their job descriptions, 

such as running his personal errands. There is no evidence to 

indicate that he ever asked similarly situated white employees to 

do those tasks. 

 On one particular occasion, while Aman was using the 

restroom, Gauthier, a sales representative, demanded that Aman 

approve a credit application immediately. Aman replied, "Katie, 

have you heard the latest, Lincoln freed slaves?" In response to 

that remark Gauthier complained to Shuttleworth, who refused to 

speak to Aman from that day forward. Shuttleworth then 
approached Johnson and told her that "Aman has got to go." In 

response to this dispute, Jim Newton, the controller, called 

Johnson and stated that "if this continues we're going to have to 

come up there and get rid of all of you." When Johnson asked 

what he meant by "all of you," Newton refused to elaborate. 

During this conversation, Johnson informed Newton that the racial 

problems at Cort Furniture were getting out of control. 

 In meetings with Boswell and Kurtz, Johnson informed 

Cort Furniture's management that salespeople were harassing and 

insulting black warehouse employees by constantly telling them 

"Don't touch anything" in customers' homes and "Don't steal." 

Johnson also asked why black employees were being paid less than 

white employees, but was told only that that was a Human 

Resources Department issue. 

 When Kurtz became general manager in June of 1991, the 

harassment apparently increased. Kurtz began to yell at Aman on 

a regular basis. When he met with Aman for the first time as 

general manager, Kurtz told her that he "knew all about" Aman, 

Jeanette Johnson, and Bruce Buchanan. The only thing these three 

employees had in common was that they were black. Until Aman 

departed, Kurtz subjected her to careful scrutiny whenever she 

interacted with white female employees. 

 Johnson was also the focus of Kurtz's harassment. 

According to Johnson, Kurtz made it known that he had offered her 

job to a white employee. Kurtz then made it more difficult for 

her to perform her job by withholding necessary financial 

information. On one occasion, as a result of conflicting 

instructions from Kurtz and Newton, Newton apparently slammed 

Johnson's door and yelled at her. While he later apologized, 

Newton admitted that he never treated anyone else in the same 

manner. 

 During August of 1991, the racial problems at Cort 

Furniture appeared to be coming to a head. Kurtz received a 

letter of complaint about Aman from Stephen Urbish, a customer of 

Cort Furniture. After another incident between Kurtz and Aman in 

which Kurtz yelled at her in front of the entire office, he 

refused to discuss business matters with Aman, and instead 

informed her that he was receiving complaints about her. 

 On October 10, 1991, Kurtz forced Johnson to issue a 

formal warning to Aman, despite Johnson's objection. Although 

the warning stated that customers had complained about Aman, 

Johnson could recall but a single complaint, one in which a 

customer complained that he did not appreciate being called and 

told that he owed money. Later, Johnson was instructed to give 

Aman a work plan which required Johnson to spend two hours 

everyday monitoring Aman. Johnson informed Cort Furniture that 

it was her opinion that the work plan was unnecessary, but was 

forced to comply in order to keep her job. 

 On October 18, 1991, Aman's counsel sent a letter to 

Cort Furniture complaining of discrimination against Aman. Later 

that month in a district meeting attended by all administrative, 

sales and warehouse employees, Kurtz allegedly stated that "the 

blacks are against the whites," and that if anyone didn't like it 

at Cort Furniture, they could leave. 
 In January of 1992, Kurtz once again became angry with 

Aman, this time for not granting credit approval for a project 

which would have contradicted prior instructions she had 

received. In February, Aman resigned after giving four days 

notice, and filed a charge of discrimination with the EEOC. Aman 

testified that the hostile environment in which she worked had 

forced her to see a doctor for nervousness three times in 1991 

and once in 1992. 

 Johnson also observed the discriminatory treatment of 

other black employees. Johnson testified that every time she 

hired a black person at Cort Furniture, there were complaints 

from salespeople and general managers about that person's 

performance. In addition, in 1991 she personally witnessed the 

firing of James Washington, a black warehouse employee, who was 

terminated for accepting a tip from a customer, while on the same 

day a white warehouse employee failed his third drug test but was 

kept on in violation of company policy. In 1992, Johnson was 

forced to terminate Robin Flagg, a black customer service 

representative. According to Johnson, Flagg's only offense was 

that she had not received the training from Cort Furniture which 

would have enabled her properly to do her job. Also in 1992, 

Johnson was forced to terminate a black warehouseman for too many 

accidents, even though at least one other white warehouseman with 

as many accidents was not fired. 

 After Aman resigned, Kurtz told Johnson to "hire an 

Italian, they won't take no for an answer." She was also 

instructed by members of management, including Tom Rogers and 

Regional Vice-President Shuttleworth, to gather as much 

derogatory information about Aman as she could. Johnson informed 

them that all relevant information was already in Aman's 

personnel file, but management persisted. Johnson was told that 

Aman had filed a complaint with the EEOC, and they needed this 

information in order to prevail. 

 In response to Aman's discrimination charge, Cort 

Furniture required the depositions of several employees, 

including Johnson. Shuttleworth telephoned Johnson on August 7, 

1992, and asked her to give a statement the following week. When 

Johnson informed him that she would be on vacation until the 

17th, he said that they would get in touch with her when she 

returned. On Sunday, August 16th, the day before Johnson was 

supposed to return to work following her vacation, Shuttleworth 

called Johnson at her home at 9:30 p.m. and informed her that she 

was scheduled for a deposition the following afternoon. 

According to Johnson, this was the first time anyone ever 

mentioned the term "deposition" to her. 

 The next morning, Johnson telephoned Human Resources 

and eventually spoke with Kim Martin, an employee in the 

department. Johnson informed Martin that she wanted to speak to 

her attorney and to other people in Human Resources before she 

proceeded with the deposition. Martin responded that Johnson's 

proposal was acceptable, as long as she realized Cort Furniture 

would still want her to give a deposition. Johnson replied that 

she did not have a problem with giving a deposition once she knew 

what her rights were. After missing her scheduled deposition, 
Johnson was fired. Johnson was advised that she had been 

terminated because her failure to attend the deposition proved 

"that you are not loyal to this company." 

 Aman and Johnson filed this suit against Cort Furniture 

alleging racial discrimination in violation of Title VII and the 

New Jersey Law Against Discrimination. They alleged that Cort 

Furniture created a racially hostile work environment, paid 

blacks less than whites, constructively discharged Aman, and 

fired Johnson in retaliation for protesting discriminatory 

practices. Cort Furniture moved for summary judgment on the 

Title VII claims, and the district court granted Cort Furniture's 

motion. The court found that Aman and Johnson had failed to 

establish a claim of hostile environment because the evidence 

demonstrated only rudeness, and not racial animus; that they had 

failed to demonstrate that they were paid less than similarly 

situated white employees; that Aman had failed to demonstrate 

that a reasonable person would have resigned; and that Johnson 

had failed to present any evidence to demonstrate that she was 

fired for participating in protected activity. The district 

court then dismissed Aman and Johnson's state claims with 

prejudice. This appeal followed. 

 II. 

 We have held repeatedly that the party moving for 

summary judgment under Fed. R. Civ. P. 56(c) bears the burden of 

demonstrating the absence of any genuine issues of material fact. 

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Chipollini v. 

Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987). This 

burden remains with "the moving party regardless of which party 

would have the burden of persuasion at trial." Chipollini, 814 

F.2d at 896. 

 As we noted at the outset (and as our factual 

recitation in Part I of this opinion would indicate), when 

determining whether the moving party has proven the absence of a 

genuine material issue of fact, the facts asserted by the 

nonmoving party, if supported by affidavits or other evidentiary 

material, must be regarded as true, Scott v. Plante, 532 F.2d 939 

(3d Cir. 1976); and "the inferences to be drawn from the 

underlying facts . . . must be viewed in the light most favorable 

to the party opposing the motion." Matsushita, 475 U.S. at 587 

(quoting United States v. Diebold, Inc., 369 U.S. 654, 655 

(1962)) (emphasis added); Celotex, 477 U.S. at 330 n.2 ("any 

doubt as to the existence of a genuine issue for trial should be 

resolved against the moving party."). Viewed under this lens, 

"[i]f . . . there is any evidence in the record from any source 

from which a reasonable inference in the [nonmoving party's] 

favor may be drawn, the moving party simply cannot obtain a 

summary judgment . . . ." Celotex, 477 U.S. at 330 n.2 (quoting 

In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 

238, 258 (1983), reversed on other grounds sub nom. Matsushita, 

475 U.S. 574 (1986)). 

 A district court's grant of summary judgment is subject 

to plenary review, Public Interest Research of N.J. v. Powell 

Duffryn Terminals, Inc., 913 F.2d 64, 71 (3d Cir. 1990), and we 

are required "to apply the same test the district court should 
have utilized initially." Goodman v. Mead Johnson & Co., 534 

F.2d 566 (3d Cir. 1976); see also Berner Int'l Corp. v. Mars 

Sales Co., 987 F.2d 975 (3d Cir. 1993); and J.F. Feeser, Inc. v. 

Serv-A-Portion, Inc., 909 F.2d 1524, 1530 (3d Cir. 1990). 

 On summary judgment, Cort Furniture does not challenge 

the factual basis of Aman and Johnson's supporting evidence, but 

claims instead that even if their evidence is true, it would be 

insufficient to establish impermissible employment practices 

under Title VII. Cort Furniture is, therefore, required to 

demonstrate that there is no evidence in the record upon which 

any reasonable jury could conclude that discrimination occurred. 

For the following reasons, we conclude that Cort Furniture failed 

to carry its burden. 

 III. Title VII Claims 

 A. Hostile Environment. 

 In order to establish a claim for employment 

discrimination due to an intimidating or offensive work 

environment, a plaintiff must establish, "by the totality of the 

circumstances, the existence of a hostile or abusive environmentwhich is 

severe enough to affect the psychological stability of a 

minority employee." Andrews v. City of Philadelphia, 895 F.2d 

1469, 1482 (3d Cir. 1990) (quoting Vance v. Southern Bell Tel. 

and Tel. Co., 863 F.2d 1503, 1510 (11th Cir. 1989)). 

Specifically, a plaintiff must show: (1) that he or she suffered 

intentional discrimination because of race; (2) the

discrimination was pervasive and regular; (3) the discrimination 

detrimentally affected the plaintiff; (4) the discrimination 

would detrimentally affect a reasonable person of the same race 

in that position; and (5) the existence of respondeat superior 

liability. Id.; West Philadelphia Elec. Co., 45 F.3d 744, 753 

(3d Cir. 1995). As the Supreme Court has emphasized: 

 whether an environment is "hostile" or 

 "abusive" can be determined only by looking 

 at the circumstances. These may include the 

 frequency of the discriminatory conduct; its 

 severity; whether it is physically 

 threatening or humiliating, or a mere 

 offensive utterance; and whether it 

 unreasonably interferes with an employee's

 work performance. 

Harris v. Forklift Systems, Inc., 114 S. Ct. 367, 371, 126 

L.Ed.2d 295, 302 (1993). 

 The issue in this case is whether the district court 

correctly determined that the plaintiffs failed to demonstrate 

that they suffered from intentional racial discrimination or that 

the discrimination was pervasive and regular. 

 In many respects, the facts of this case represent what 

has become the typical Title VII employment discrimination case 

of this decade. Anti-discrimination laws and lawsuits have 

"educated" would-be violators such that extreme manifestations of 

discrimination are thankfully rare. Though they still happen, 

the instances in which employers and employees openly use 

derogatory epithets to refer to fellow employees appear to be 

declining. Regrettably, however, this in no way suggests that 
discrimination based upon an individual's race, gender, or age is 

near an end. Discrimination continues to pollute the social and 

economic mainstream of American life, and is often simply masked 

in more subtle forms. It has become easier to coat various forms 

of discrimination with the appearance of propriety, or to ascribe 

some other less odious intention to what is in reality 

discriminatory behavior. In other words, while discriminatory 

conduct persists, violators have learned not to leave the 

proverbial "smoking gun" behind. As one court has recognized, 

"[d]efendants of even minimal sophistication will neither admit 

discriminatory animus or leave a paper trail demonstrating it." 

Riordan v. Kempiners, 831 F.2d 690, 697 (7th Cir. 1987). But 

regardless of the form that discrimination takes, the 

impermissible impact remains the same, and the law's prohibition 

remains unchanged. "Title VII tolerates no racial 

discrimination, subtle or otherwise." McDonnell Douglas Corp. v. 

Green, 411 U.S. 793, 801 (1973). 

 The sophisticated would-be violator has made our job a 

little more difficult. Courts today must be increasingly 

vigilant in their efforts to ensure that prohibited

discrimination is not approved under the auspices of legitimate 

conduct, and "a plaintiff's ability to prove discrimination 

indirectly, circumstantially, must not be crippled . . . because 

of crabbed notions of relevance or excessive mistrust of juries." 

Riordan, 831 F.2d at 698. 

 Considered in the light most favorable to them, Aman 

and Johnson have produced sufficient evidence so that a 

reasonable jury could conclude that the working environment at 

Cort Furniture was pervaded by discriminatory "intimidation, 

ridicule, and insult." Harris, 114 S. Ct. at 370, 126 L.Ed.2d at 

301. The plaintiffs' evidence demonstrates that from 1986 

through 1992, employees of Cort Furniture made inherently racist 

remarks. Aman and Johnson were referred to as "another one," 

"one of them," "that one in there," and "all of you." Other 

black employees were harassed on a daily basis by employees at 

Cort Furniture, who hurled insults such as "don't touch 

anything," and "don't steal." Aman and Johnson were also 

subjected to apparently false accusations of favoritism, 

incompetence, and were made to do menial jobs. The evidence of 

record shows that white employees were not treated in a similar 

fashion. In addition, several employees refused to deal with 

Aman even in matters where she was directly responsible for 

approving a customer's credit, and these employees were never 

reprimanded even though their actions were in direct violation of 

company policy. 

 Cort Furniture argued, and the district court agreed, 

that any racial harassment ended in 1989 because by then many of 

the individuals who had made these remarks were no longer 

employed by Cort Furniture. If that were true, then Aman and 

Johnson's claims based solely on those incidents would be timebarred. But in addition to many other instances of abusive and 

harassing behavior, Aman and Johnson point to several 

particularly troubling comments made in 1991 by current 

management level employees. 
 First, in a discussion with Johnson, Jim Newton, the 

district controller, stated that if things were not resolved with 

Aman, "we're going to have to come up there and get rid of all of 

you." App. at 41. When asked whom he meant by "all of you," 

Newton refused to answer. Id. Second, Robert Kurtz, the general 

manager, after slamming his hand on Aman's desk, told her that he 

knew all about her and two other employees. The only factor the 

three shared in common was their race. Id. at 316. Third, in a 

district meeting attended by all administrative, sales, and 

warehouse employees, Kurtz stated that "the blacks are against 

the whites," and that if anyone did not like it at Cort 

Furniture, they could leave. Id. at 323. 

 The district court's conclusion that harassment ended 

in 1989 appears to be based upon a belief that these later 

comments were not racially motivated. Aman, slip op. at 12. In 

our view, however, the use of "code words" can, under 

circumstances such as we encounter here, violate Title VII. 

Indeed, a reasonable jury could conclude that the intent to 

discriminate is implicit in these comments. Cf. Andrews, 895 

F.2d at 1482 n.3 ("The intent to discriminate on the basis of sex 

in cases involving sexual propositions, innuendo, pornographic 

materials, or sexual derogatory language is implicit, and thus 

should be recognized as a matter of course."). There are no 

talismanic expressions which must be invoked as a conditionprecedent to the application of laws designed to protect against 

discrimination. The words themselves are only relevant for what 

they reveal -- the intent of the speaker. See Futrell v. J.I. 

Case, 38 F.3d 342, 347 (7th Cir. 1994) (holding that statements 

like "sharp young people" and that the employee was not a 

"forward enough thinker" could reasonably be interpreted as 

evidence of bias under the ADEA). A reasonable jury could find 

that statements like the ones allegedly made in this case send a 

clear message and carry the distinct tone of racial motivations 

and implications. They could be seen as conveying the message 

that members of a particular race are disfavored and that members 

of that race are, therefore, not full and equal members of the 

workplace. As we have held, the pervasive use of derogatory and 

insulting terms directed at members of a protected class 

generally, and addressed to those employees personally, may serve 

as evidence of a hostile environment. Andrews, 895 F.2d at 1485. 

Moreover, a reasonable jury could conclude that Kurtz's statement 

that "the blacks are against the whites" represents management's 

explicit recognition of a racially hostile environment at Cort 

Furniture. 

 In addition to those described above, Aman and Johnson 

testified to numerous other examples of harassment which, viewed 

in isolation, arguably may not have been motivated by racial 

animus. For example, Aman alleges that her time cards were 

stolen, making it harder for her to perform her job. Other 

employees physically snatched things from her. Aman was falsely 

accused of wrongdoing on at least two occasions. As discussed 

earlier, several employees, including a sales manager, ignored or 

refused to deal with Aman. Johnson was informed on several 

occasions that Aman "had to go." In addition, Kurtz yelled at 
Aman on a daily basis, and there is conflicting evidence as to 

whether he yelled at any white employees at Cort Furniture. 

After Aman and Johnson began complaining about racial 

discrimination, employees were asked to keep complaint lists 

about Aman. Similarly, Kurtz withheld relevant financial 

information from Johnson and gave her orders that directly 

contradicted orders from the controller, Jim Newton, as well as 

company policy. In response to one of these occasions, Newton 

slammed the door to Johnson's office and yelled at her. Even 

though he apologized, he admitted that he had never behaved in 

this fashion toward anyone else. 

 In light of the suspicious remarks discussed above, a 

reasonable jury could interpret this behavior as part of a 

complex tapestry of discrimination when examined in conjunction 

with the comments made by Cort Furniture's employees and 

management. As we have said, 

 A play cannot be understood on the basis of 

 some of its scenes but only on its entire 

 performance, and similarly, a discrimination 

 analysis must concentrate not on individual 

 incidents, but on the overall scenario. . . . 

 ` . . . What may appear to be a legitimate 

 justification for a single incident of 

 alleged harassment may look pretextual when 

 viewed in the context of several other 

 incidents.' 

Id. at 1484 (quoting Vance v. Southern Bell Tel. and Tel Co., 863 

F.2d 1503, 1510 (11th Cir. 1989)) (concluding that missing files, 

anonymous calls, and vandalism could be evidence of a hostile 

environment). We do not imply that such acts of harassment must 

be accompanied by racially discriminatory statements. Indeed, we 

have previously held that overt racial harassment is not 

necessary to establish a hostile environment. See Andrews, 895 

F.2d at 1485. All that is required is a showing that race is a 

substantial factor in the harassment, and that if the plaintiff 

had been white she would not have been treated in the same 

manner. Id. We simply note that the harassment of black 

employees, when combined with the discriminatory statements made 

by other Cort Furniture employees, can be viewed as making the 

plaintiffs' racial discrimination claim all the more compelling. 

This is especially true given that a reasonable jury could 

conclude that Cort Furniture's management was not only aware of 

these acts and statements, but was also a source of the 

harassment and comments. 

 Viewed in the light most favorable to the non-moving 

parties, Aman and Johnson not only have established a prima faciecase of 

discrimination, but they have also provided sufficient 

evidence such that a reasonable jury could conclude that they 

were subject to intentional discrimination on a regular and 

pervasive basis. We conclude, therefore, that summary judgment 

as to Aman and Johnson's hostile environment claim should not 

have been granted. 

 B. Constructive Discharge. 

 In order to establish a constructive discharge, a 
plaintiff must show that "the employer knowingly permitted 

conditions of discrimination in employment so intolerable that a 

reasonable person subject to them would resign." Goss v. Exxon 

Office Systems Co., 747 F.2d 885, 888 (3d Cir. 1984). In Goss, 

we upheld a finding of constructive discharge which stemmed from 

the reassignment of the plaintiff to a less lucrative territory 

based upon her sex. In doing so, we found two factors to be 

particularly persuasive: (1) the employee had lost confidence in 

herself and her employer; and (2) the reassignment represented a 

substantial cut in pay. Id. at 888-89. Similarly, in Levendos 

v. Stern Entertainment, Inc., 860 F.2d 1227, 1231 (3d Cir. 1988), 

we reversed a district court's grant of summary judgment on a 

claim of constructive discharge, stating: 

 While we can imagine a maitre'd who might not 

 object to exclusion from management meetings, 

 denial of authority to order supplies, false 

 accusations of stealing from and drinking on 

 the job, and who might not be disturbed by

 rumors and remarks that she would be replaced 

 by a male, her employer's refusal to talk 

 with her, and to find wine bottles in her 

 locker, we find that these events are clearly 

 not trivial. 

We held that a jury could ultimately decide that a reasonable 

person would be forced to quit. Id. 

 With regard to Aman's constructive discharge claim, the 

district court held that: (1) she had not put forth sufficient 

evidence to support a finding of racial discrimination; (2) the 

conditions could not have been intolerable as a matter of law 

because she remained in her job for approximately four months 

after claiming that they were intolerable; and (3) the specific 

events that prompted her departure were insufficient as a matter 

law. Aman, slip op. at 16. We will address each conclusion in 

turn. 

 Because we believe that Aman has provided sufficient 

evidence to support her claim of racial discrimination as 

discussed above, we will not repeat that discussion here. 

Suffice it to say that courts have found constructive discharge 

based upon a continuous pattern of discriminatory treatment over 

a period of years, Nolan v. Cleland, 686 F.2d 806, 813 (9th Cir. 

1982); Clark v. Marsh, 665 F.2d 1168 (D.C. Cir. 1981), and Aman 

has set forth sufficient facts so that a reasonable jury could 

conclude that her decision to leave was reasonable based upon the 

history of discriminatory treatment. 

 The district court's second and third conclusions must 

be addressed in tandem. As an initial matter, we have rejected 

imposing an "aggravated circumstances" requirement upon 

constructive discharge claims. Levendos, 860 F.2d at 1232 ("we 

cannot state as a broad proposition of law that a single nontrivial incident of discrimination can never be egregious enough 

to compel a reasonable person to resign."). The fact that Aman 

had been subject to continuous discrimination during her 

employment could support a conclusion that she simply had had 

enough. No other precipitating facts were legally required. 
Even if we did require aggravating circumstances, the courts in 

Nolan and Clark both found that a history of discrimination 

constituted aggravating circumstances and we see no reason to 

disagree with that conclusion. Accordingly, the fact that Aman 

left four weeks after her attorney contacted Cort Furniture 

alleging intolerable conditions does not preclude a finding that 

a reasonable person would be compelled to resign under the 

circumstances. A jury could conclude that the conditions of her 

employment were intolerable, and that while she had the fortitude 

to stay, her strength finally failed. 

 Finally, there is evidence from which a jury could 

conclude that the circumstances of Aman's employment changed 

during those four months. When asked about the incidents 

prompting her decision to leave, Aman answered: 

 I believe being called in and told that I had 

 to be written up, this was after I tried to 

 cooperate with the work plan that had been 

 given me . . . Mr. Kurtz behaving badly to me 

 . . . Making accusations that I wasn't doing 

 my job properly, the way he spoke to me, the 

 way he yelled at me and ordered me in his 

 office, disregarding my own supervisor and 

 doing it in front of other people. 

App. 287-88. When asked what happened between the time her 

attorney first contacted Cort Furniture and her departure, she 

testified that the harassment "stepped up." App. at 284-86. 

Specifically, after her attorney contacted Cort Furniture, Kurtz 

and other employees became even more abusive than usual. It was 

during this period that Aman was informed that she was to be 

formally reprimanded and that employees had been instructed to 

compile complaint lists about her. It was also after her 

attorney's letter that Kurtz made his statement that "the blacks 

are against the whites," and that those who didn't like it should 

leave. Taken as a whole, a reasonable jury could certainly 

conclude that after being subjected to these conditions, Aman was 

constructively discharged. 

 C. Retaliatory Discharge. 

 To establish a prima facie case for retaliatory 

discharge, a plaintiff must show: (1) that she engaged in a 

protected activity; (2) that she was discharged subsequent to or 

contemporaneously with such activity; and (3) that a casual link 

exists between the protected activity and the discharge. Jalil 

v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989). Cort Furniture 

argues, and the district court agreed, that Johnson was not fired 

for engaging in a protected activity because failure to 

participate in the internal investigation was a legitimate ground 

for her termination. Aman, slip op. at 17. Once again, this 

conclusion is not supported by the evidence when considered in 

the light most favorable to Johnson. 

 As a preliminary matter, protesting what an employee 

believes in good faith to be a discriminatory practice is clearly 

protected conduct. 42 U.S.C.  2000e-3(a); Griffiths v. Cigna 

Corp., 988 F.2d 457, 468 (3d Cir. 1993). Thus, "a plaintiff need 
not prove the merits of the underlying discrimination complaint, 

but only that `he was acting under a good faith, reasonable 

belief that a violation existed.'" Griffiths, 988 F.2d at 468 

(quoting Sumner v. United States Postal Service, 899 F.2d 203, 

209 (2d Cir. 1990)). It is undisputed that Johnson complained to 

Cort Furniture's management about what she believed constituted 

discriminatory practices at Cort Furniture. Thus, Johnson's 

numerous complaints about discrimination and her refusal to 

"gather" more derogatory information to place in Aman's file 

following Aman's termination, separate and apart from her failure 

to attend the deposition, represent activities protected under 

Title VII. 

 But the fact that her discharge did not immediately 

follow these activities does not undermine her claim. We have 

held that the "mere passage of time is not legally conclusive 

proof against retaliation." Robinson v. S.E. Pa. Transp. 

Authority, 982 F.2d 892, 894-95 (3d Cir. 1993) (holding that the 

evidence was sufficient to demonstrate retaliation for activities 

that occurred two years prior to the termination). The issue 

remains whether a reasonable jury could conclude that Johnson was 

discharged because she engaged in protected activity. Cort 

Furniture has offered a facially legitimate reason for her 

discharge (her failure to attend the deposition), but has failed 

to demonstrate that Johnson cannot produce direct or indirect 

evidence to support her claim. Chipollini, 814 F.2d at 899. To 

the contrary, Johnson has provided sufficient circumstantial 

evidence so that a reasonable jury could conclude that she was 

retaliatorily discharged. First, there is undisputed evidence 

that Johnson complained about discrimination at Cort Furniture. 

It is also undisputed that Johnson complained that Aman in 

particular had been treated unfairly, and that she repeatedly 

refused to "gather" more derogatory information against Aman so 

Cort Furniture "could win the case against her." App. at 115-16. 

 It is also undisputed that Johnson was fired after she 

failed to appear for the deposition concerning Aman's employment 

at Cort Furniture. Cort Furniture's explanation for Johnson's 

dismissal was that her failure to attend the deposition was 

evidence of disloyalty. On the day she missed the deposition, 

she was told that "[y]ou have proven you are not loyal to this 

company, because of that I have to release you." App. at 2. It 

is worth noting that Johnson was not told that she was fired for 

insubordination or failing to comply with the company's internal 

policies. Instead, the contemporaneous reason offered for her 

discharge was disloyalty. In light of this evidence, Cort 

Furniture's decision to terminate Johnson could be seen as making 

good on Newton's threat to "come up there and get rid of all of 

you." 

 Moreover, Johnson has provided evidence which casts 

doubt upon Cort Furniture's reliance upon the deposition incident 

as the sole basis for her firing. Specifically, Johnson 

testified that she called various employees in Cort Furniture's 

Human Resources Department to inform them that she was willing to 

participate in a deposition but wanted to consult with an 

attorney and with human resources. Johnson testified that "I 
told [Kim Martin] . . . that I wanted to talk to my attorney 

before I went, and I wanted to talk to human resources before I 

went. She said `fine, keep in mind they will keep asking you to 

take the deposition.' I said, `I don't have a problem with that 

as long as I know what my rights are.'" App. at 3. Cort 

Furniture failed to offer any evidence to rebut this testimony. 

Thus, there is evidence from which a reasonable jury could 

conclude that Cort Furniture was aware that Johnson did not 

refuse to participate in the internal investigation, but merely 

requested some time to understand the nature of the proceedings 

in which she was asked to participate. In light of this evidence 

and drawing all inferences in Johnson's favor, a reasonable jury 

could conclude that there was no disloyalty and that Cort 

Furniture's proffered reason is a pretext to mask a retaliatory 

motive. 

 Finally, the fact-finder would be entitled to consider 

all of the evidence of a hostile environment in order to 

determine the reason for Johnson's firing. Evidence of 

discrimination against other employees or of a hostile work 

environment is relevant to "whether one of the principal nondiscriminatory reasons asserted by [an employer] for its actions 

was in fact a pretext for . . . discrimination." Glass v. 

Philadelphia Elec. Co., 34 F.3d 188, 194. (3d Cir. 1994); Estes 

v. Dick Smith Ford, Inc., 856 F.2d 1097, 1104 (8th Cir. 1988) 

("Evidence of prior acts of discrimination is relevant to an 

employer's motive even where this evidence is not extensive 

enough to establish discriminatory animus itself."). See alsoHeyne v. 

Caruso, 69 F.3d 1475, 1480 (9th Cir. 1995) (alleged

sexual harassment of other employees other than plaintiff is 

relevant to prove employer's motive); EEOC v. Farmer Bros. Co., 

31 F.3d 891, 897-98 (9th Cir. 1994) (evidence of employer's 

sexual harassment of female employees other than the plaintiff 

and evidence of disparaging remarks about women in general were 

relevant to determine motive). As we have recognized, "an 

atmosphere of condoned [racial] harassment in the workplace 

increases the likelihood of retaliation for complaints in 

individual cases." Glass, 34 F.3d at 195 (quoting Hawkings v. 

Hennepin Technical Center, 900 F.2d 153, 156 (8th Cir. 1990)). 

Viewed in the light most favorable to Johnson, a reasonable jury 

could conclude that given her exemplary employment history and 

the general evidence of a hostile environment, Johnson was fired 

because she had protested discrimination at Cort Furniture, and 

Cort Furniture believed that her hesitancy to attend the 

deposition meant that she would continue to complain of 

discrimination and testify against Cort Furniture in Aman's EEOC 

investigation. 

 D. Unequal Pay. 

 The final claim raised by Aman and Johnson is a claim 

of discriminatory pay. As the district court correctly notes, in 

order to establish a case of unequal pay, plaintiffs must 

demonstrate "that [they] were performing work substantially equal 

to that of [white employees] who were compensated at [] higher 

rate[s] than [they were]." Hohe v. Midland Corp., 613 F. Supp. 

210, 214 (E.D. Mo. 1985), aff'd without op., 786 F.2d 1172 (8th 
Cir. 1976). To support their claim that they were paid less than 

white employees, Aman and Johnson rely almost exclusively on a 

comparison of Cort Furniture employees' job grade levels. With 

the exception of a single individual, Aileen Wilson who performs 

the same job as Johnson in a different office, they did not 

provide any evidence to demonstrate that the jobs performed by 

the white employees were the same or that the employees had 

similar credentials. Cort Furniture responded by providing 

evidence that an employee's pay was not solely determined by job 

grade level, but by job duties and the differences in pay 

structure among the sales, warehouse, and administrative staff. 

Aman and Johnson have offered no evidence to rebut Cort 

Furniture's explanation, and at oral argument, they conceded that 

with the exception of the difference in pay between Johnson and 

Wilson, Cort Furniture's explanation of the pay differential 

between individuals with the same job grade was reasonable. 

 With respect to the pay disparity between Johnson and