Outten & Golden Advises on Mandel Ruling

By Paul Mollica posted in Daily Developments in EEO Law on Monday, January 14, 2013:

The Third Circuit overrules its prior, restrictive case law interpreting the limitations period under Title VII for a claim of hostile work environment, holding that - in light of Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) - the employee need not present evidence on the "permanence" of harassing conduct to prove a continuing violation. The panel reverses and remands a claim of sex harassment to be evaluated under the new, more forgiving standard.

Mandel v. M&Q Packaging Corp., No. 11-3193 (3d Cir. Jan. 14, 2013): The panel summarizes the allegations of harassment -

"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."

The alleged harassment was said to culminate in a final, name-calling event - the proverbial straw on the camel's back:

"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."

The district court, applying Third Circuit case law dating to 1990s, held that a determining factor in whether the limitations period on a claim of sex harassment accrued is whether the "permanence" of the acts should have put the employee on notice of a need to assert her rights. It held that while the employee established (for summary judgment purposes) the gender-based nature of the harassment and its frequency, plaintiff "failed the permanency requirement because Mandel should have been aware of the need to assert her rights" but failed to assert her claims with "reasonable diligence."

The Third Circuit reverses. It holds that the "permanency requirement," which it borrowed from the 1980s-vintage Berry v. Bd. of Supervisors case (from the Fifth Circuit), was overruled by Morgan. "It is clear that there is no longer a permanency requirement under the continuing violation doctrine and that the Supreme Court's decision in Morgan thus supersedes our opinions . . . to the extent that we adopted Berry."

Applying Morgan, the panel holds that the employee presented a viable continuing-violation argument:

"Mandel has alleged at least one act that falls within the statute of limitations (i.e. Bachert calling her a "bitch" during a meeting), and many of the acts that occurred prior to the applicable limitations period involved similar conduct by the same individuals, suggesting a persistent, ongoing pattern. We will, therefore, remand the case to the District Court for further proceedings, including a determination of the scope of the incidents properly considered part of the continuing violation for the hostile work environment claim."

Thus correcting the district court's error on the limitations defense, the panel also holds that the district court erred in separating out the harassing events and evaluating them in isolation:

"The District Court summarized the alleged incidents and concluded that 'none of the alleged incidents is sufficiently severe to establish a hostile work environment.' The District Court's reasoning suggests that it improperly parsed out each event and viewed them separately, rather than as a whole. On remand, the District Court must consider the totality of the circumstances, rather than parse out the individual incidents, to determine whether the acts that collectively form the continuing violation are severe or pervasive."

Finally, the panel remands Mandel's constructive discharge claim, holding that the same activity that constituted a hostile work environment might also be held to be sufficiently intolerable that she was essentially forced to resign.

Despite the plaintiff's victory on these two claims, the panel nevertheless affirms summary judgment on Mandel's other discrimination claims under Title VII and state law on statute of limitations grounds.