The opinion of the court was delivered by: A. Richard Caputo United States District Judge
On January 9, 2009, Plaintiff Shannon Mandel filed a Complaint against her former employer, Defendant M & Q Packaging Corporation ("M & Q"), bringing claims under Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act ("PHRA"). On July 25, 2011, the Court granted summary judgment in favor of M & Q on Mandel's PHRA claims and Title VII hostile work environment, constructive discharge, and sex discrimination claims. On January 14, 2013, the United States Court of Appeals for the Third Circuit affirmed the Court's judgment on Mandel's PHRA claims and Title VII sex discrimination claims, reversed the Court's judgment on Mandel's Title VII hostile work environment and constructive discharge claims, and remanded the case for further proceedings. The parties have submitted briefs and given oral argument on the matters for remand. For the reasons below, the Court will deny M & Q's motion for summary judgment on Mandel's hostile work environment and constructive discharge claims.
Shannon Mandel worked for M & Q from October 28, 1996 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, which alleged that she was subjected to discrimination on the basis of her sex and expressed her desire to file a charge of discrimination. On December 14, 2007, Mandel filed a charge of discrimination with the EEOC ("EEOC Charge") and cross-filed her complaint with the Pennsylvania Human Relations Commission ("PHRC").
On January 9, 2009, Mandel filed a Complaint in this Court against M & Q, bringing claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the PHRA, 43 PA. CONS. STAT. §§ 951 et seq. She also brought a state law tort claim for intentional infliction of emotional distress ("IIED"). M & Q moved to dismiss the Complaint on March 16, 2009. On August 18, 2009, the Court dismissed Mandel's IIED claim for failure to state a claim and her Title VII and PHRA retaliation claims for failure to exhaust her administrative remedies. See Mandel v. M & Q Packaging Corp., No. 3:09-CV-42, 2009 WL 2579308 (M.D. Pa. Aug. 18, 2009).
On November 8, 2010, M & Q moved for summary judgment on Mandel's remaining claims. The Court granted the motion on July 25, 2011. See Mandel v. M & Q Packaging Corp., No. 3:09-CV-42, 2011 WL 3031264 (M.D. Pa. July 25, 2011). Specifically, the Court found all of Mandel's PHRA claims and all of her Title VII claims for incidents that occurred prior to November 17, 2006 to be time-barred. Id. at *6--8. The Court then considered the remaining incidents on the merits and granted summary judgment on Mandel's Title VII hostile work environment, constructive discharge, and sex discrimination claims. Id. at *11--13. Mandel appealed the Court's final judgment on August 10, 2011.
By Order and Opinion dated January 14, 2013, the United States Court of Appeals for the Third Circuit affirmed the Court's dismissal of Mandel's Title VII and PHRA retaliation claims as well as its grant of summary judgment on her Title VII sex discrimination claims and remaining PHRA claims. See Mandel v. M & Q Packaging Corp., 706 F.3d 157, 161 (3d Cir. 2013). However, it reversed the Court's grant of summary judgment on Mandel's Title VII hostile work environment and constructive discharge claims. Id. Notably, the Third Circuit declared that permanency is not required to establish a continuing violationand found that Mandel's hostile work environment claim may proceed under a continuing violation theory. Id. at 166--67. The Third Circuit remanded the case for this Court to determine the scope of incidents that are part of the continuing violation. Id. at 167. In doing so, the Court must decide whether three instances of harassment cited in Mandel's EEOC Charge, but not in her deposition testimony, are part of the continuing violation. Id. at 168. On remand, the Court must also "review the constructive discharge claim in light of evidence of a hostile work environment to determine if the conditions of Mandel's employment had become intolerable" and consider whether M & Q's laches defense applies. Id. at 167, 170.
On February 20, 2013, the Court issued an Order requiring both parties to submit briefs by April 3, 2013 on the following issues: (1) the continuing violation doctrine; (2) the parties' contentions for the incidents properly considered part of the continuing violation; (3) whether the incidents contained solely in Mandel's EEOC Charge are part of the continuing violation; (4) the parties' contentions regarding the totality of the circumstances analysis for determining the severity of the acts that form the continuing violation; and (5) the availability of the laches defense to M & Q. The parties timely filed briefs and reply briefs, and oral argument was held on April 23, 2013.
M & Q is a producer and distributor of diversified polyamide nylon film product lines. Shannon Mandel was hired by M & Q on October 28, 1996. From that date until approximately 1998 or 1999, she reported to George Schmidt, Sales Manager. Subsequently, she reported to Jack Menges, Vice President, until February 2006.*fn1 From
February 2006 until May 23, 2007, Mandel reported to Michael Schmal, Managing Director.
Mandel's final position with M & Q was Inside Sales and Customer Service Coordinator. She 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 but Ernie Bachert, Plant Manager, characterized as staff meetings. Several managers attended these meetings. She testified that Bachert, Department Manager Larry Dahm, and Human Resources Manager Jack Conway were her peers.
During Mandel's employment with M & Q, the company had an employee handbook. Mandel received the handbook and revisions to it. The handbook included an Equal Employment Opportunity Policy ("EEO Policy"), which advises employees to report harassment or discrimination to the personnel manager in the personnel office. Mandel testified that she reviewed the EEO Policy at the time of her employment and understood it. She also testified that she understood Human Resources Manager Jack Conway to be the "personnel manager." Bachert testified that "personnel manager" referred to Conway and that "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 to the personnel manager if the problem does not get resolved. 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 she told Bachert to claim that he was gay as a defense against jealous husbands who accused him of making sexual advances on their wives. On multiple occasions, Mandel 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 M & Q disputes that the following incidents occurred (with exceptions where noted), the facts in evidence are viewed in the light most favorable to Mandel at this stage. 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, Sherri Buckmaster, who is no longer employed at M & Q, 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 and 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 IT Department of M & Q's North Wales office, asking for the details of an upcoming 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, Harold Brenneman, Quality Manager, would comment on how "tan and smooth" her legs were.*fn2 Brenneman's employment overlapped with Mandel's from October 28, 1996 until December 1, 1997, when he left M & Q. Buckmaster testified that Brenneman made sexual innuendo comments about the women who worked as his assistants.
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 during the summers of 2005 and 2006, Conway referred to them as "beat me, bite me" shoes.*fn3
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.*fn4 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 three to 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.*fn5 Mandel also heard from Cunkle that Dahm, too, referred to Mandel as "fluffy" when she was not there. Also, as detailed above, Mandel was required to make coffee for Dahm.
Rubenstein Incidents: On three occasions, Curt Rubenstein, Vice President of Sales, solicited Mandel for dates. Rubenstein asked Mandel if she would go to the gym and work out with him, go out to dinner with him, and go back with him to where ...