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. e du/thir dc ir c uit_1996/185UNITED 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 CO URT

FOR THE DISTRICT OF NEW JERSEY

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

___________

ARGUED JANUARY 24, 1996

BEFORE: STAPLETON, MANSMANN and LEWIS, Circui t 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 AvenuePost 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

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OPINION OF THE COURT

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LEWIS, Circuit Judge. Carol Aman and Jeanette Johnson appeal fro m the district court's grant of summary judgment in favor of Cort Furniture Rental Corporation on their employment di scrimination 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. T hey argue that the record contains evidence from which a jury coul d conclude: (1) that while employed at Cort Furniture, they wer e subject to a hostile work environment; (2) that Aman was constru ctively discharged; (3) that Johnson was discharged in reta liation for protesting discrimination at Cort Furniture; and (4 ) that black employees were paid less than similarly situated wh ite employees. For the reasons which follow, we will reve rse the district court's grant of summary judgment as to Am an's and Johnson's hostile environment, constructive dischar ge and retaliatory discharge claims, and will affirm its j udgment as to their unequal pay claims.

I. Carol Aman and Jeanette Johnson, both blac k, 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 t heir employment at Cort Furniture, they were subjected t o an atmosphere of racial contempt and harassment. Aman claims that this resulted in her constructive discharge. Johns on claims that she was discharged in retaliation for complaining a bout Cort Furniture's discriminatory practices. From 1986 through the termination of their emp loyment in 1992, Aman and Johnson claim that co-workers and managers engaged in a pervasive and systematic pattern of ha rassmenttoward black employees. Aman and other black emplo yees were

referred to as "another one," "one of them," and "p oor people." Aman was also the target of at least three false ac cusations of favoritism allegedly exhibited toward her by her bl ack supervisor, as well as dereliction of duty. On sev eral occasions, co-workers physically snatched documents from Aman's hands and stole time cards that she needed to perfo rm her job. This behavior, however, was not limited to Ama n and Johnson's co-workers; it was engaged in by manageme nt as well. For example, both Aman and Johnson heard Allen Shut tleworth, Regional Vice-President of Cort Furniture, make dis paraging racial remarks about their supervisor, Joyce Lampki n. On one occasion, Shuttleworth came into the office and ask ed the white employees on Lampkin's staff, "Where is that one in there?" Despite this harassment, in 1989 Aman was prom oted to the position of credit manager, and Johnson became supervisor of the administrative department after Lampkin moved t o the sales department. As a credit manager Aman was responsib le for approving credit and collecting on past due account s. Cort Furniture salespeople were required to submit credi t 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 supervi sor. In November of that year, Johnson received a letter fr om 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 noth ing to increase the respect of her fellow employees. She continued to suffer harassment from white sales staff and manage ment, including Karen Brady, Lisa Jentsch, Katie Gauthier , Laura Greathead, Chris Benzle, Robert Kurtz, and Barry Bo swell. 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 want ed Aman "out." Brady, Jentsch, and Greathead bypassed Aman and ext ended credit to customers against Cort Furniture policy, and the re is no evidence that any of them were reprimanded for thei r behavior. In addition, Boswell, the sales manager, continuall y ignored Aman's requests for information necessary to her jo b. He also allegedly harassed Aman and another black employee by making them do menial tasks which were not within their job des criptions, such as running his personal errands. There is no evidence to indicate that he ever asked similarly situated whit e employees to

do those tasks. On one particular occasion, while Aman was usi ng the restroom, Gauthier, a sales representative, demande d that Aman approve a credit application immediately. Aman rep lied, "Katie, have you heard the latest, Lincoln freed slaves?" In response to that remark Gauthier complained to Shuttleworth, wh o refused to speak to Aman from that day forward. Shuttleworth thenapproached Johnson and told her that "Aman has got to go." In

response to this dispute, Jim Newton, the controlle r, called Johnson and stated that "if this continues we're go ing to have to come up there and get rid of all of you." When Joh nson asked what he meant by "all of you," Newton refused to el aborate. During this conversation, Johnson informed Newton t hat the racial problems at Cort Furniture were getting out of cont rol. In meetings with Boswell and Kurtz, Johnson in formed Cort Furniture's management that salespeople were h arassing and insulting black warehouse employees by constantly t elling them "Don't touch anything" in customers' homes and "Don 't steal." Johnson also asked why black employees were being p aid less than white employees, but was told only that that was a Human Resources Department issue. When Kurtz became general manager in June of 1 991, the harassment apparently increased. Kurtz began to ye ll at Aman on a regular basis. When he met with Aman for the fir st time as general manager, Kurtz told her that he "knew all a bout" Aman, Jeanette Johnson, and Bruce Buchanan. The only thi ng these three employees had in common was that they were black. Until Aman departed, Kurtz subjected her to careful scrutiny w henever she interacted with white female employees.

Johnson was also the focus of Kurtz's harassme nt. According to Johnson, Kurtz made it known that he h ad offered her job to a white employee. Kurtz then made it more d ifficult for her to perform her job by withholding necessary fin ancial information. On one occasion, as a result of confl icting instructions from Kurtz and Newton, Newton apparent ly slammed Johnson's door and yelled at her. While he later a pologized, Newton admitted that he never treated anyone else i n the same

manner. During August of 1991, the racial problems at Cort Furniture appeared to be coming to a head. Kurtz r eceived a letter of complaint about Aman from Stephen Urbish, a customer of
Cort Furniture. After another incident between Kur tz and Aman in which Kurtz yelled at her in front of the entire of fice, 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 i ssue a formal warning to Aman, despite Johnson's objection . Although the warning stated that customers had complained ab out Aman, Johnson could recall but a single complaint, one in which a customer complained that he did not appreciate bein g called and told that he owed money. Later, Johnson was instru cted to give Aman a work plan which required Johnson to spend tw o hours everyday monitoring Aman. Johnson informed Cort Fu rniture that it was her opinion that the work plan was unnecessa ry, but was forced to comply in order to keep her job. On October 18, 1991, Aman's counsel sent a let ter to Cort Furniture complaining of discrimination agains t Aman. Later that month in a district meeting attended by all ad ministrative, sales and warehouse employees, Kurtz allegedly stat ed 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 an gry with

Aman, this time for not granting credit approval fo r a project which would have contradicted prior instructions sh e had received. In February, Aman resigned after giving four days notice, and filed a charge of discrimination with t he EEOC. Aman
testified that the hostile environment in which she worked had
forced her to see a doctor for nervousness three ti mes in 1991
and once in 1992. Johnson also observed the discriminatory treat ment of other black employees. Johnson testified that ever y time she hired a black person at Cort Furniture, there were complaints from salespeople and general managers about that pe rson's performance. In addition, in 1991 she personally w itnessed the firing of James Washington, a black warehouse emplo yee, who was terminated for accepting a tip from a customer, whi le on the same day a white warehouse employee failed his third dru g test but was kept on in violation of company policy. In 1992, J ohnson was forced to terminate Robin Flagg, a black customer s ervice representative. According to Johnson, Flagg's only offense was that she had not received the training from Cort Fu rniture which would have enabled her properly to do her job. Als o in 1992,
Johnson was forced to terminate a black warehousema n for too many accidents, even though at least one other white war ehouseman with as many accidents was not fired. After Aman resigned, Kurtz told Johnson to "hi re an Italian, they won't take no for an answer." She wa s 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. Jo hnson 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, C ort Furniture required the depositions of several emplo yees, including Johnson. Shuttleworth telephoned Johnson on August 7, 1992, and asked her to give a statement the followi ng 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 J ohnson was supposed to return to work following her vacation, Shuttleworth called Johnson at her home at 9:30 p.m. and informe d her that she was scheduled for a deposition the following aftern oon. According to Johnson, this was the first time anyon e ever mentioned the term "deposition" to her. The next morning, Johnson telephoned Human Res ources and eventually spoke with Kim Martin, an employee i n the department. Johnson informed Martin that she wante d to speak to her attorney and to other people in Human Resources before she proceeded with the deposition. Martin responded th at Johnson's proposal was acceptable, as long as she realized Co rt 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 ha d been

terminated because her failure to attend the deposi tion proved "that you are not loyal to this company." Aman and Johnson filed this suit against Cort Furniture alleging racial discrimination in violation of Titl e VII and the New Jersey Law Against Discrimination. They allege d that Cort Furniture created a racially hostile work environme nt, paid blacks less than whites, constructively discharged Aman, and fired Johnson in retaliation for protesting discrim inatory practices. Cort Furniture moved for summary judgme nt on the Title VII claims, and the district court granted Co rt Furniture's
motion. The court found that Aman and Johnson had failed to
establish a claim of hostile environment because th e 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 d emonstrate that a reasonable person would have resigned; and t hat Johnson had failed to present any evidence to demonstrate t hat she was fired for participating in protected activity. The district
court then dismissed Aman and Johnson's state claim s 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. 198 7). This burden remains with "the moving party regardless of which party would have the burden of persuasion at trial." Chi pollini, 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 othe r evidentiary material, must be regarded as true, Scott v. Plante , 532 F.2d 939 (3d Cir. 1976); and "the inferences to be drawn fro m 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. 6 54, 655 (1962)) (emphasis added); Celotex, 477 U.S. at 330 n.2 ("any doubt as to the existence of a genuine issue for tr ial should be resolved against the moving party."). Viewed under this lens, "[i]f . . . there is any evidence in the record fro m 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 Litiga tion, 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 i s subject to plenary review, Public Interest Research of N.J. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 71 (3d Cir. 1 990), and we are required "to apply the same test the district c ourt shouldhave 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. Fe eser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1530 (3d Cir. 1990). On summary judgment, Cort Furniture does not c hallenge 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, req uired to
demonstrate that there is no evidence in the record upon which any reasonable jury could conclude that discriminat ion occurred. For the following reasons, we conclude that Cort Fu rniture failed to carry its burden.
III. Title VII Claims
A. Hostile Environment. In order to establish a claim for employme nt discrimination due to an intimidating or offensive work environment, a plaintiff must establish, "by the to tality of the circumstances, the existence of a hostile or abusiv e environmentwhich is severe enough to affect the psychological stability of a minority employee." Andrews v. City of Philadelphi a, 895 F.2d 1469, 1482 (3d Cir. 1990) (quoting Vance v. Souther n Bell Tel. and Tel. Co., 863 F.2d 1503, 1510 (11th Cir. 1989))

. Specifically, a plaintiff must show: (1) that he o r she suffered intentional discrimination because of race; (2) the discrimination was pervasive and regular; (3) the d iscrimination detrimentally affected the plaintiff; (4) the discr imination would detrimentally affect a reasonable person of t he same race in that position; and (5) the existence of responde at superior liability. Id.; West Philadelphia Elec. Co., 45 F. 3d 744, 753 (3d Cir. 1995). As the Supreme Court has emphasize d:
whether an environment is "hostile" or "abusive" can be determined only by lookin g at the circumstances. These may include t he frequency of the discriminatory conduct; i ts 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, 3 71, 126 L.Ed.2d 295, 302 (1993).
The issue in this case is whether the dist rict court correctly determined that the plaintiffs failed to demonstrate that they suffered from intentional racial discrimi nation or that the discrimination was pervasive and regular. In many respects, the facts of this case r epresent what has become the typical Title VII employment discrim ination case
of this decade. Anti-discrimination laws and lawsu its have
"educated" would-be violators such that extreme man ifestations of discrimination are thankfully rare. Though they st ill happen, the instances in which employers and employees open ly use derogatory epithets to refer to fellow employees ap pear to be declining. Regrettably, however, this in no way su ggests thatdiscrimination based upon an individual's race, gen der, or age is

near an end. Discrimination continues to pollute t he 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 real ity discriminatory behavior. In other words, while dis criminatory conduct persists, violators have learned not to lea ve the proverbial "smoking gun" behind. As one court has recognized, "[d]efendants of even minimal sophistication will n either admit discriminatory animus or leave a paper trail demons trating it." Riordan v. Kempiners, 831 F.2d 690, 697 (7th Cir. 1 987). But regardless of the form that discrimination takes, t he impermissible impact remains the same, and the law' s prohibition remains unchanged. "Title VII tolerates no racial discrimination, subtle or otherwise." McDonnell Do uglas Corp. v. Green, 411 U.S. 793, 801 (1973). The sophisticated would-be violator has ma de our job a little more difficult. Courts today must be increa singly vigilant in their efforts to ensure that prohibited discrimination is not approved under the auspices o f legitimate conduct, and "a plaintiff's ability to prove discri mination indirectly, circumstantially, must not be crippled . . . because
of crabbed notions of relevance or excessive mistru st of juries." Riordan, 831 F.2d at 698. Considered in the light most favorable to them, Aman and Johnson have produced sufficient evidence so th at a reasonable jury could conclude that the working env ironment at Cort Furniture was pervaded by discriminatory "inti midation, ridicule, and insult." Harris, 114 S. Ct. at 370, 126 L.Ed.2d at 301. The plaintiffs' evidence demonstrates that fr om 1986 through 1992, employees of Cort Furniture made inhe rently racist

remarks. Aman and Johnson were referred to as "ano ther one," "one of them," "that one in there," and "all of you ." Other black employees were harassed on a daily basis by e mployees at Cort Furniture, who hurled insults such as "don't t ouch anything," and "don't steal." Aman and Johnson wer e also subjected to apparently false accusations of favori tism, 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 respons ible for approving a customer's credit, and these employees were never reprimanded even though their actions were in direc t violation of company policy. Cort Furniture argued, and the district co urt 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, the n Aman and Johnson's claims based solely on those incidents wo uld be timebarred. But in addition to many other instances of abusive and harassing behavior, Aman and Johnson point to sever al particularly troubling comments made in 1991 by cur rent management level employees.First, in a discussion with Johnson, Jim N ewton, 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 "al l of you," Newton refused to answer. Id. Second, Robert Kurt z, the general manager, after slamming his hand on Aman's desk, to ld her that he knew all about her and two other employees. The on ly factor the
three shared in common was their race. Id. at 316. Third, in a district meeting attended by all administrative, sa les, 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 harassmen t ended in 1989 appears to be based upon a belief that thes e later comments were not racially motivated. Aman, slip o p. at 12. In our view, however, the use of "code words" can, und er circumstances such as we encounter here, violate Ti tle VII. Indeed, a reasonable jury could conclude that the i ntent to discriminate is implicit in these comments. Cf. An drews, 895 F.2d at 1482 n.3 ("The intent to discriminate on th e basis of sex in cases involving sexual propositions, innuendo, p ornographic materials, or sexual derogatory language is implici t, and thus should be recognized as a matter of course."). The re are no talismanic expressions which must be invoked as a c onditionprecedent to the application of laws designed to pr otect against discrimination. The words themselves are only rele vant for what they reveal -- the intent of the speaker. See Futr ell v. J.I. Case, 38 F.3d 342, 347 (7th Cir. 1994) (holding tha t statements like "sharp young people" and that the employee was not a "forward enough thinker" could reasonably be interp reted as evidence of bias under the ADEA). A reasonable jur y could find that statements like the ones allegedly made in thi s 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 an d that members of that race are, therefore, not full and equal mem bers of the workplace. As we have held, the pervasive use of d erogatory and insulting terms directed at members of a protected class generally, and addressed to those employees persona lly, may serve as evidence of a hostile environment. Andrews, 895 F.2d at 1485. Moreover, a reasonable jury could conclude that Kur tz's statement that "the blacks are against the whites" represents management's explicit recognition of a racially hostile environm ent 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 ca rds were stolen, making it harder for her to perform her job . Other employees physically snatched things from her. Ama n was falsely accused of wrongdoing on at least two occasions. A s discussed earlier, several employees, including a sales manag er, ignored or
refused to deal with Aman. Johnson was informed on several occasions that Aman "had to go." In addition, Kurt z yelled atAman on a daily basis, and there is conflicting evi dence as to

whether he yelled at any white employees at Cort Fu rniture. After Aman and Johnson began complaining about raci al discrimination, employees were asked to keep compla int lists about Aman. Similarly, Kurtz withheld relevant fin ancial information from Johnson and gave her orders that d irectly contradicted orders from the controller, Jim Newton , as well as company policy. In response to one of these occasi ons, 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 a bove, a reasonable jury could interpret this behavior as pa rt of a complex tapestry of discrimination when examined in conjunction with the comments made by Cort Furniture's employee s 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. an d 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 ha rassment must be accompanied by racially discriminatory statement s. Indeed, we have previously held that overt racial harassment i s not necessary to establish a hostile environment. See Andrews, 895 F.2d at 1485. All that is required is a showing th at race is a substantial factor in the harassment, and that if t he plaintiff
had been white she would not have been treated in t he same manner. Id. We simply note that the harassment of black employees, when combined with the discriminatory st atements made by other Cort Furniture employees, can be viewed as making the plaintiffs' racial discrimination claim all the mor e compelling. This is especially true given that a reasonable jur y could conclude that Cort Furniture's management was not o nly 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 suffici ent evidence such that a reasonable jury could conclude that they were subject to intentional discrimination on a reg ular and pervasive basis. We conclude, therefore, that summ ary judgment
as to Aman and Johnson's hostile environment claim should not have been granted. B. Constructive Discharge.
In order to establish a constructive disch arge, aplaintiff must show that "the employer knowingly pe rmitted

conditions of discrimination in employment so intol erable that a reasonable person subject to them would resign." G oss 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 lucrati ve territory based upon her sex. In doing so, we found two fact ors 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 jud gment on a claim of constructive discharge, stating: While we can imagine a maitre'd who might not object to exclusion from management meetin gs, denial of authority to order supplies, fal se accusations of stealing from and drinking on the job, and who might not be disturbed by rumors and remarks that she would be repla ced 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 clea rly
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 dischar ge claim, the district court held that: (1) she had not put fort h sufficient evidence to support a finding of racial discriminat ion; (2) the
conditions could not have been intolerable as a mat ter of law because she remained in her job for approximately f our months after claiming that they were intolerable; and (3) the specific events that prompted her departure were insufficien t as a matter law. Aman, slip op. at 16. We will address each c onclusion in

turn. Because we believe that Aman has provided sufficient evidence to support her claim of racial discriminat ion as discussed above, we will not repeat that discussion here. Suffice it to say that courts have found constructi ve discharge based upon a continuous pattern of discriminatory t reatment 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. 198 1), 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 conc lusions must be addressed in tandem. As an initial matter, we h ave 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 s ingle nontrivial incident of discrimination can never be egr egious enough to compel a reasonable person to resign."). The fa ct that Aman had been subject to continuous discrimination durin g her employment could support a conclusion that she simp ly had had enough. No other precipitating facts were legally required.Even if we did require aggravating circumstances, t he courts in

Nolan and Clark both found that a history of discri mination constituted aggravating circumstances and we see no reason to disagree with that conclusion. Accordingly, the fa ct that Aman left four weeks after her attorney contacted Cort F urniture alleging intolerable conditions does not preclude a finding that a reasonable person would be compelled to resign un der the circumstances. A jury could conclude that the cond itions 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 c ould conclude that the circumstances of Aman's employmen t changed during those four months. When asked about the inc idents 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 dep arture, she testified that the harassment "stepped up." App. a t 284-86. Specifically, after her attorney contacted Cort Fur niture, Kurtz and other employees became even more abusive than u sual. It was during this period that Aman was informed that she was to be formally reprimanded and that employees had been in structed to compile complaint lists about her. It was also aft er her attorney's letter that Kurtz made his statement tha t "the blacks are against the whites," and that those who didn't like it should leave. Taken as a whole, a reasonable jury could c ertainly conclude that after being subjected to these condit ions, Aman was constructively discharged.

C. Retaliatory Discharge. To establish a prima facie case for retali atory discharge, a plaintiff must show: (1) that she eng aged in a protected activity; (2) that she was discharged sub sequent to or contemporaneously with such activity; and (3) that a casual link exists between the protected activity and the disch arge. 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 failur e to participate in the internal investigation was a leg itimate ground for her termination. Aman, slip op. at 17. Once a gain, this conclusion is not supported by the evidence when co nsidered in the light most favorable to Johnson. As a preliminary matter, protesting what a n employee believes in good faith to be a discriminatory pract ice 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 neednot prove the merits of the underlying discriminati on complaint,

but only that `he was acting under a good faith, re asonable belief that a violation existed.'" Griffiths, 988 F.2d at 468 (quoting Sumner v. United States Postal Service, 89 9 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 re fusal to "gather" more derogatory information to place in Am an's file following Aman's termination, separate and apart fr om her failure to attend the deposition, represent activities prot ected under
Title VII. But the fact that her discharge did not immediately
follow these activities does not undermine her clai m. We have held that the "mere passage of time is not legally conclusive proof against retaliation." Robinson v. S.E. Pa. T ransp. Authority, 982 F.2d 892, 894-95 (3d Cir. 1993) (hol ding 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 th at Johnson was discharged because she engaged in protected activit y. Cort Furniture has offered a facially legitimate reason for her discharge (her failure to attend the deposition), b ut has failed to demonstrate that Johnson cannot produce direct o r indirect evidence to support her claim. Chipollini, 814 F.2 d at 899. To the contrary, Johnson has provided sufficient circu mstantial evidence so that a reasonable jury could conclude t hat she was retaliatorily discharged. First, there is undisput ed evidence that Johnson complained about discrimination at Cor t 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 aga inst Aman so Cort Furniture "could win the case against her." A pp. at 115-16. It is also undisputed that Johnson was fir ed after she failed to appear for the deposition concerning Aman 's employment at Cort Furniture. Cort Furniture's explanation fo r Johnson's dismissal was that her failure to attend the deposi tion was evidence of disloyalty. On the day she missed the deposition, she was told that "[y]ou have proven you are not lo yal to this company, because of that I have to release you." A pp. at 2. It is worth noting that Johnson was not told that she was fired for insubordination or failing to comply with the compa ny's internal policies. Instead, the contemporaneous reason offe red for her discharge was disloyalty. In light of this evidenc e, Cort
Furniture's decision to terminate Johnson could be seen as making good on Newton's threat to "come up there and get r id of all of you." Moreover, Johnson has provided evidence wh ich casts doubt upon Cort Furniture's reliance upon the depos ition incident as the sole basis for her firing. Specifically, Jo hnson 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 w ith an attorney and with human resources. Johnson testifi ed that "Itold [Kim Martin] . . . that I wanted to talk to my attorney

before I went, and I wanted to talk to human resour ces 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 prob lem with that as long as I know what my rights are.'" App. at 3. Cort Furniture failed to offer any evidence to rebut thi s testimony. Thus, there is evidence from which a reasonable jur y 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 re asonable jury could conclude that there was no disloyalty and tha t 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 ord er to determine the reason for Johnson's firing. Evidenc e of discrimination against other employees or of a host ile work environment is relevant to "whether one of the prin cipal nondiscriminatory reasons asserted by [an employer] fo r its actions was in fact a pretext for . . . discrimination." G lass 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 relev ant to an employer's motive even where this evidence is not e xtensive 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 pla intiff is relevant to prove employer's motive); EEOC v. Farme r Bros. Co., 31 F.3d 891, 897-98 (9th Cir. 1994) (evidence of em ployer's sexual harassment of female employees other than th e plaintiff and evidence of disparaging remarks about women in general were relevant to determine motive). As we have recogniz ed, "an atmosphere of condoned [racial] harassment in the w orkplace increases the likelihood of retaliation for complai nts in individual cases." Glass, 34 F.3d at 195 (quoting Hawkings v. Hennepin Technical Center, 900 F.2d 153, 156 (8th C ir. 1990)). Viewed in the light most favorable to Johnson, a re asonable jury could conclude that given her exemplary employment history and the general evidence of a hostile environment, John son was fired because she had protested discrimination at Cort Fu rniture, and Cort Furniture believed that her hesitancy to atten d the deposition meant that she would continue to complai n of discrimination and testify against Cort Furniture i n 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 corre ctly notes, in order to establish a case of unequal pay, plaintiff s must demonstrate "that [they] were performing work subst antially equal to that of [white employees] who were compensated a t [] 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 (8thCir. 1976). To support their claim that they were paid less than

white employees, Aman and Johnson rely almost exclu sively on a comparison of Cort Furniture employees' job grade l evels. 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 p erformed by the white employees were the same or that the emplo yees had similar credentials. Cort Furniture responded by p roviding evidence that an employee's pay was not solely dete rmined by job grade level, but by job duties and the differences in pay structure among the sales, warehouse, and administr ative 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 dif ferential between individuals with the same job grade was rea sonable. With respect to the pay disparity between John son and