Sexual Harassment – Continuing Violation Doctrine Supports Hostile Work Environment Claim – Third Circuit Reverses District Court Grant of Summary Judgment

In assessing the viability of an employee proceeding with sexual harassment claims, employment lawyers should carefully construct detailed time-lines to make an assessment of all events potentially supporting the claim. As long as one event falls with the 300 days EEOC Charge time period, the continuing violation doctrine can provide sanctuary. In Mandel v. M&Q Packaging Corp., 2013 U.S. App. LEXIS 864 (3rd Cir. January 14, 2013), the Third Circuit reversed the grant of summary judgment on Title VII hostile work environment and constructive discharge claims by Middle District of Pennsylvania Judge Caputo based upon the continuing violation doctrine. In Mandel, the Plaintiff alleged that she was sexually harassed and discriminated against by male managers, supervisors, and owners throughout her employment and was 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” and numerous other incidents of inappropriate sexually charged comments. Ultimately, the Plaintiff resigned but did not complain of harassment or discrimination in her resignation letter and prior to the resignation that Plaintiff did not complain to her supervisors about all but one minor alleged incident. In Mandel the Plaintiff contended she was constructively discharged due to intolerable work conditions after she complained of sex discrimination and sexual harassment.

The Third Circuit’s reversal was based upon the continuing violation doctrine, discriminatory acts that are not individually actionable may be aggregated to make out a hostile work environment claim; such acts “can occur at any time so long as they are linked in a pattern of actions which continues into the applicable limitations period.” See O’Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006). The Third Circuit found the District Court erroneously concluded that because the Plaintiff “did not pursue her claim with reasonable diligence” she was precluded from using the continuing violation theory.” The Third Circuit found that the Plaintiff could proceed under a continuing violation theory because at least one act fell within the statute of limitations. In addition, the Third Circuit noted that in determining whether an environment is hostile, the District improperly parsed out each event and viewed each separately, rather than as a whole. As to being detrimentally affected, the Third Circuit held that a jury could reasonably conclude that the Plaintiff did not invite comments or conduct and that, despite her own conduct, was offended by them and because the inherently subjective question of whether particular conduct was unwelcome presents difficult problems of proof and turns on credibility determinations.

There are also two important evidentiary issues for employment law practitioner to note in Mandel. First, the Plaintiff’s claim ran into many difficulties because of timing delays in filing the EEOC Charge and the content of the EEOC Charge. Thus, the Third Court found that the District Court correctly found that the retaliation claims were not within the scope of the Charge because the Plaintiff failed to exhaust her remedies for any claims of retaliation. It is important to make sure that EEOC Charges are filed as soon as possible and to the extent the attorney foes not have control over the original filing, attorneys should scrutinize the EEOC Charge and seek to amend or file new Charges where retaliation is an issue.

Second, the Third Circuit also noted that the District Court erred by disregarding three specific instances of harassment listed in a signed EEOC Charge but not testified to at Plaintiff’s deposition because the EEOC Charge is a sworn statement, signed under the penalty of perjury, and thus should be regarded as more than “bare assertions” or “conclusory allegations.” See Liotta v. Nat’l Forge Co., 629 F.2d 903, 907 (3d Cir. 1980).

For more information on Sexual Harassment Claims and Abramson Employment Law see


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Filed under Employment Law, Retaliation, Sexual Harassment

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