706 F.3d 157 (3rd Cir. 2013), 11-3193, Mandel v. M & Q Packaging Corp.

Docket Nº:11-3193.
Citation:706 F.3d 157
Opinion Judge:ROTH, Circuit Judge:
Party Name:Shannon J. MANDEL, Appellant v. M & Q PACKAGING CORP., A Subsidiary of M & Q Plastic Productions, Inc.
Attorney:Jeffrey R. Elliott, Esquire, Joan E. London, Esquire, (Argued), Michael M. Monsour, Esquire, Kozloff Stoudt, Wyomissing, PA, for Appellant. Catherine T. Barbieri, Esquire (Argued), Steven K. Ludwig, Esquire, Fox Rothschild, Philadelphia, PA, for Appellee. Gail S. Coleman, Esquire (Argued), Equal ...
Judge Panel:Before: GREENAWAY, JR., ROTH and TASHIMA , Circuit Judges.
Case Date:January 14, 2013
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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706 F.3d 157 (3rd Cir. 2013)

Shannon J. MANDEL, Appellant


M & Q PACKAGING CORP., A Subsidiary of M & Q Plastic Productions, Inc.

No. 11-3193.

United States Court of Appeals, Third Circuit.

January 14, 2013

         Argued on April 26, 2012.

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         Jeffrey R. Elliott, Esquire, Joan E. London, Esquire, (Argued), Michael M. Monsour, Esquire, Kozloff Stoudt, Wyomissing, PA, for Appellant.

          Catherine T. Barbieri, Esquire (Argued), Steven K. Ludwig, Esquire, Fox Rothschild, Philadelphia, PA, for Appellee.

          Gail S. Coleman, Esquire (Argued), Equal Employment Opportunity Commission, Washington, D.C., for Amicus in support of Appellant.

         Before: GREENAWAY, JR., ROTH and TASHIMA[*], Circuit Judges.


          ROTH, Circuit Judge:

         Shannon J. Mandel appeals the final judgment of the District Court entered on July 25, 2011, following the grant of summary judgment in favor of defendant M & Q Packaging Corporation. For the reasons that follow, we will affirm the judgment of the District Court with respect to the retaliation claims, the PHRA claims, and the Title VII sex discrimination claims. We will reverse the District Court's grant of summary judgment on the Title VII hostile work environment and constructive discharge claims and remand the case for further proceedings in accordance with this opinion.

         I. BACKGROUND

         A. Factual Background

         On October 25, 1996, Shannon J. Mandel was hired as an Inside Sales and Customer Relations Coordinator by M & Q Packaging Corporation (M & Q), which manufactures and sells packaging film. Mandel claimed that, throughout her employment from October 25, 1996, to May 23, 2007, she was sexually harassed and discriminated against by male managers, supervisors, and owners in alleged incidents such as being referred to as " woman," " darling," " the woman," " fluffy," " missy," " hon," and " toots" ; having her body, clothing, and physical appearance commented on; being told that she was " foolish not to use [her] assets" ; being told by Systems Manager David Benetz, when she asked for directions to a meeting at corporate headquarters, that " [f]or you ... the meeting will start at my house tonight and we will conclude our part of it tomorrow morning— maybe ... we may need to postpone the meeting with everyone else a few hours to finish up ..." ; being told by Quality Manager Harold Brenneman that he fantasized about her while he was having sex with his wife; being told in a review by Managing Director (and later President & COO) Michael Schmal that she was " too female" and " too emotional" ; being solicited for dates by Vice President of Sales Curt Rubenstein even after she told him she was not interested; being told to clean the bathroom and make coffee when male employees were not asked to perform such tasks; and being paid less and given less vacation time than a male manager.

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          Mandel reported to George Schmidt from October 25, 1996, until 1998 or 1999, to Vice President Jack Menges until February of 2006, and finally to Schmal until May 23, 2007. Mandel contends that Schmal, Department Manager Larry Dahm, Plant Manager Ernest Bachert, and Human Resources Manager Jack Conway also reported to Menges during the same time period and were her peers. Neither Menges nor Schmidt ever harassed Mandel.

         On April 6, 2007, during a meeting regarding sample orders, Bachert became angry, repeatedly called Mandel a " bitch," and screamed " shut the fuck up." Bachert had previously referred to Mandel as a " bitch," both in and out of her presence. As a result of the meeting, Mandel resigned on May 23, 2007, by submitting a letter with two weeks' notice to Schmal. When Mandel resigned from M & Q, she accepted a position with Yuengling.

         In her resignation letter, Mandel did not complain of harassment or discrimination, apparently because she was concerned she would be denied her vacation time. She did, however, refer to the Employee Handbook. The Employee Handbook included an Equal Employment Opportunity Policy, which informed employees that they should contact the personnel manager— in this case, Conway— if they felt they were being discriminated against. The Employee Handbook also included an Open Door policy, which directed employees to discuss any issues first with their supervisor and then with the personnel manager. Mandel testified in her deposition that she understood the policies in the Employee Handbook but felt uncomfortable going to Conway or Schmal with her complaints. Conway testified in his deposition that other than giving each employee a copy of the Employee Handbook, there was no training regarding discrimination or sexual harassment.

         Although Mandel complained to Schmidt about being told to make coffee, she did not complain to her supervisors about other alleged incidents of harassment or discrimination. Mandel occasionally used profanity and sent emails containing sexual humor. Mandel also called Bachert " gay" on a few occasions, apparently as a joke in reference to jealous husbands who claimed Bachert made advances to their wives. Mandel was never disciplined during her employment with M & Q.

         B. Procedural History

         Mandel completed Equal Employment Opportunity Commission (EEOC) questionnaires (dated July 17, 2007), which were received by the EEOC on September 13, 2007. On the questionnaires, Mandel checked boxes indicating " I want to file a charge." The EEOC processed the forms and issued a Charge of Discrimination (Charge) on December 14, 2007. That same day, Mandel requested that the Charge be dual filed with the Pennsylvania Human Relations Commission (PHRC). On October 21, 2008, the EEOC issued a Dismissal and Notice of Rights, indicating " the EEOC is unable to conclude that the information obtained establishes violations of the statutes" and informing Mandel of her right to sue within 90 days of receipt.

         On January 9, 2009, Mandel filed a Complaint against M & Q, alleging gender-based discrimination, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Counts I and II), and the Pennsylvania Human Relations Act (PHRA), 43 Pa. Stat. § 951 et seq. (Count III), as well as intentional infliction of emotional distress in violation of Pennsylvania law (Count IV).

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          On August 18, 2009, the District Court partially granted M & Q's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). The District Court found that Mandel had failed to exhaust her administrative remedies because she indicated on the EEOC questionnaires that she did not take action for fear of reprisal and thus any claim of retaliation was not encompassed in the EEOC Charge. The District Court also found that the allegations did not constitute the type of " clearly disparate and ultra extreme conduct" actionable under an intentional infliction of emotional distress claim. The District Court, therefore, dismissed Counts I, II, and III to the extent they alleged claims of retaliation and dismissed Count IV in its entirety.

         On July 25, 2011, the District Court granted M & Q's motion for summary judgment on all remaining claims. The District Court excluded evidence of certain alleged incidents because Mandel did not testify to them in her deposition, although she discussed them in her EEOC questionnaires. The District Court found all of Mandel's claims under the PHRA time barred, as well as all claims under Title VII for incidents that occurred prior to November 17, 2006. The District Court then considered the remaining incidents on the merits and granted summary judgment in favor of M & Q.

         Mandel appealed, and the EEOC filed an amicus brief.


         A. Motion to Dismiss

         Mandel argues that the District Court erred in granting M & Q's motion to dismiss all claims of retaliation. We exercise plenary review of an order granting a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Newman v. Beard, 617 F.3d 775, 779 (3d Cir.2010). We accept all factual allegations as true and construe the complaint in the light most favorable to the plaintiff. Id.

          A plaintiff " must exhaust all required administrative remedies before bringing a claim for judicial relief." Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir.1997). To bring a claim under Title VII, a plaintiff must file a charge of discrimination with the EEOC and procure a notice of the right to sue. See id. at 1020-21. The same is required to bring a claim under the PHRA. Atkinson v. LaFayette Coll., 460 F.3d 447, 454 n. 6 (3d Cir.2006) (" Claims under the PHRA are interpreted coextensively with Title VII claims." ). " [T]he parameters of the civil action in the district court are defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination, including new acts which occurred during the pendency of proceedings before the [EEOC]." Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir.1976) (citations omitted). A plaintiff's claim must thus fall " fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom." Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir.1996).

          Mandel contends, as she did before the District Court, that she was constructively discharged due to intolerable work conditions after she complained of sex discrimination and sexual harassment. The District...

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