The opinion of the court was delivered by: Judge Caputo
Plaintiff Shannon Mandel filed a complaint against her former employer, M & Q Packaging Corporation ("M & Q"). She brings claims under Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act ("PHRA"). The defendant moves for summary judgment. (Doc. 27.) Mandel's claims under the PHRA are time barred, and because she cannot establish a continuing violation, many of her claims under Title VII are also time barred. Further, Mandel failed to establish a hostile work environment or a prima facie claim of sex discrimination. Based on this, M & Q's motion for summary judgment will be granted.
Shannon Mandel began working for M & Q on October 28, 1996 and worked there until she submitted a resignation letter with two weeks' notice on May 23, 2007. On September 17, 2007, the Equal Employment Opportunity Commission ("EEOC") received a charge information questionnaire from Mandel, alleging that she was subjected to discrimination on the basis of her sex and expressing her desire to file a charge of discrimination. On December 14, 2007, Mandel filed a charge of discrimination with the EEOC and cross-filed her complaint with the Pennsylvania Human Relations Commission.
On January 9, 2009, Mandel filed a complaint in district court against M & Q, bringing claims under Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. §§ 2000e et seq., and the PHRA, codified at 43 Pa. Cons. Stat. §§ 951 et seq. She also brought a state law claim for intentional infliction of emotional distress. M & Q moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). To the extent that the complaint brought a claim for retaliation under Title VII or the PHRA, it was dismissed. Additionally, the state common law claim of intentional infliction of emotional distressed was dismissed. The plaintiff is now proceeding with claims of gender discrimination under the PHRA, and hostile work environment and constructive discharge under Title VII.
M & Q moves for summary judgment. The plaintiff opposes the motion. The motion has been fully briefed and is ripe for disposition.
Before detailing the factual background of the case, it is necessary to address some of M & Q's evidentiary concerns.
M & Q first objects to the consideration of testimony from two women--Sherri Buckmaster and Erin Hossler--who previously worked for M & Q Plastic Products, Inc. (as opposed to M & Q Packaging Corp., which was Mandel's employer and is the defendant in this case).*fn1 In that testimony, the women allege discriminatory actions on the part of employees of M & Q Packaging Corp. Defendant argues that this testimony is irrelevant "me too" evidence and is inadmissible character evidence.
Evidence that other members of a protected class suffered similar discrimination is not per se admissible or per se inadmissible. Spring/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008). Rather, it is the job of the district court to determine if the evidence is admissible. Id. "[E]vidence that women other than the plaintiff were subjected to a hostile work environment clearly meets Rule 401's [relevance] requirements in a number of situations." Hurley v. Atl. City Police Dep't, 174 F.3d 95, 110 (3d Cir. 1999). For instance, the evidence may be relevant to prove intent or to prove whether an employer knew or should have known about harassment. Id. at 111 (citing West v. Phila. Elec. Co., 45 F.3d 744, 752 (3d Cir. 1995)). Evidence of previous bad acts are not admissible "to prove the character of a person in order to show conformity therewith," however. Fed. R. Evid. § 404(3)(b).
In this case, Buckmaster and Hossler were not employed by the defendant, and neither states that they complained about harassment to the defendant. Therefore, their testimony is not relevant to whether M & Q knew or should have known of the occurrence of sexual harassment. Further, Hossler's statements that she was ignored upon return from her maternity leave are irrelevant because she explains that she was ignored by employees of both genders and presents no evidence that this was related to sex discrimination. Finally, Buckmaster's testimony about statements made to her by Plant Manager ErnieBachert are not relevant to prove Bachert's intent with Mandel because of the different nature of the relationships--Bachert and Buckmaster had a romantic relationship, whereas Bachert and Mandel only had a collegial relationship. Because Buckmaster and Hossler's statements about their own experiences with harassment are not relevant to prove intent or knowledge of Mandel's allegations and are not admissible to prove that the M & Q employees acted in conformity with a character tendency to harass women, they will not be considered. Buckmaster's statements about Mandel's harassment, however, are clearly relevant and will be considered.
Defendant's second objection is regarding three alleged incidents of harassment that Mandel included in her statement of facts. Mandel discussed these incidents in her EEOC intake questionnaire, but did not actually testify to them in her deposition. Because a party must present more than "bare assertions" or "conclusory allegations" to overcome summary judgment, Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005); see also Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000), these incidents will not be considered.
Shannon Mandel was hired by M & Q on October 28, 1996. From her date of hire until approximately 1998 or 1999, she reported to George Schmidt. Subsequently she reported to Jack Menges, Vice President, until February 2006. From February 2006 until May 23, 2007, Mandel reported to Michael Schmal, the Managing Director of M & Q.
Mandel's final position with M & Q was as the Inside Sales and Customer Service Coordinator. Mandel characterizes this as a managerial position, but M & Q does not.
Mandel did not manage any employees, and her job description did not reflect that she was a manager. Mandel attended meetings that she characterized as management meetings and Bachert characterized as staff meetings. Several managers attended these meetings. Mandel testified that managers Bachert, Larry Dahm (Department Manager), Jack Conway (Personnel Manager) were her peers.
During Mandel's employment with M & Q, the company had an Employee Handbook. Mandel received the handbook and the handbook revisions. The handbook included an Equal Employment Opportunity Policy ("EEO Policy"). The EEO Policy advises employees to report harassment or discrimination to the personnel manager in the personnel office. Bachert testified that the term "personnel manager" referred to M & Q's Human Resources and Purchasing Manager and that the term "personnel office" referred to M & Q's Human Resources Department. The handbook also included an "Open Door Policy" directing employees to take problems to supervisors first, and then if the problem does not get resolved, to meet with the personnel manager. During Mandel's employment, there was no training on sexual harassment, discrimination, or equal opportunity employment, other than a reference to the handbook.
Mandel occasionally used the term "fuck" in the workplace. On three or four occasions, Mandel called Bachert "gay." Mandel testified that this was part of an ongoing joke in which Mandel told Bachert to claim he was gay as a defense against jealous husbands who said Bachert made sexual advances on their wives. Mandel also on multiple occasions sent out e-mails to co-workers that contained sexual humor.
3. Sex Discrimination and Sexual Harassment
Mandel asserts that she was a victim of sex discrimination and sexual harassment throughout her tenure at M & Q. While the defendants dispute that the following incidents occurred (with exceptions where noted), the facts in evidence are viewed in the light most favorable to Mandel, as the non-movant. See Fed. R. Civ. P. 56. Mandel alleges the following:
Bachert Incidents: Once in 2006, after Mandel told Bachert that she had hurt herself in the shower, he asked her if she had hurt herself having sex. Additionally, during a meeting in 2006, Bachert told Mandel she was "being a bitch." On several occasions, Buckmaster witnessed Mandel ask Bachert to leave her office because he was being inappropriate. Buckmaster also on several occasions heard Bachert call Mandel a "bitch" to her face as well as refer to her as "bitch" when she was not around. Bachert is still employed with M & Q.
Benetz Incident: On April 7, 2004, Mandel e-mailed David Benetz, who worked in the North Wales office IT Department, asking for the starting and ending times of a meeting. Benetz responded by e-mail, "For you...the meeting will start at my house 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..."
Brenneman Incidents: Approximately three times per week, whenever Mandel was wearing a skirt, Brenneman would make comments about how "tan and smooth" Mandel's legs were. Brenneman's employment overlapped with Mandel's from October 28, 1996 until December 1, 1998. Buckmaster also testified that Brenneman made sexual innuendo comments about the women who worked as his assistants. Brenneman left M & Q in December of 1997.
Career Advancement Issues: Mandel was not offered career advancement or a commission package. In 2006, Dahm left and M & Q hired an outside candidate to take his position instead of combining Dahm's department with Mandel's department. M & Q had recently implemented a new computer system, and Menges told Mandel that he wanted to hire someone with a computer background. Mandel did not receive commission. Some males that worked for M & Q Plastic Products, Inc. earned commissions.
Conway Incidents: When Mandel told Conway she needed time off for gynecological surgery in June or July of 2006, he told her it was a "shame she would stoop to that level to take time off." On ten to fifteen occasions when Mandel wore high heel shoes between 2005 and 2006, Conway referred to the heels as "beat me, bite me" shoes. (Conway admits that he referred to the shoes this way on one occasion by telling Mandel that his female friend refers to high heel shoes as her "beat me, bite me" shoes.) Conway called Mandel by the following names: "darling" (up to ten times per month), "toots" (ten to fifteen times per month), "female" (thirty to fifty times per year), "woman" (fifteen times per month), and "missy" (ten to fifteen times per month). Mandel also heard from co-worker Loreen Cunkle that Conway referred to Mandel as "fluffy" when she was not there. (Conway admits that he called her "fluffy" as an ironic reference to her moodiness in the workplace and that he would have stopped using the term if she had complained about it.) Additionally, when Mandel was first employed at M & Q in 1996, she was required to make coffee for Dahm and Conway. Mandel did not deliver the coffee to Dahm and Conway; she made it and left it in a pot in the kitchen. Dahm and Conway were the only two employees Mandel noticed drinking the coffee. Conway worked at M & Q the entire time Mandel was there.
Dahm Incidents: Between 2002 and 2003, Mandel was told between three and five times by Larry Dahm, the Department Manager, that she was "foolish not to use [her] assets" and that she was "sitting on a gold mine, really, sitting on a gold mine." Dahm also called her "hon," "darling," or "toots" up to five times per week until he left M & Q in 2006. Mandel also heard from co-worker Loreen Cunkle that Dahm referred to Mandel as "fluffy" when she was not there. ...