Plaintiff’s Participation in Sexually Illicit Jokes and Emails Dooms her Sexual Harassment Case

Posted on August 09, 2011


“The plaintiff did not seem to be offended” is generally not a good defense to a sexual harassment lawsuit, but with the proper supporting evidence, it just might be enough to obtain a defense verdict.

In the case of Mandel v. M & Q Packaging Corp., Civil Action No. 3:09-CV-0042 (M.D. Pa. July 25, 2011), the U.S. District Court for the Middle District of Pennsylvania recently determined that the Plaintiff, Shannon Mandel, failed to establish a hostile work environment or a prima facie claim of sex discrimination when the evidence indicated that she was not offended by the conduct about which she complained.

Shannon Mandel worked for M & Q Packaging Corporation (“M & Q”) from October 28, 1996 until she resigned on May 23, 2007. Later that year, she filed a complaint against M & Q under Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act (PHRA) alleging sexual harassment.

In her complaint and subsequent suit, Mandel presented evidence that, during her employment with M & Q, she was called names, such as “bitch,” “female,” “missy,” and “woman,” and that she was questioned about her sex life and asked out on dates. In its defense, M & Q introduced evidence that Mandel occasionally used the term “f—k” in the workplace, jokingly and repeatedly called the Plant Manager “gay,” and, on multiple occasions, sent e-mails to co-workers that contained sexual humor.  Sexual harassment is prohibited under TitleVII where a plaintiff demonstrates that it was “sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment and create an abusive working environment.” In the Third Circuit (which includes Pennsylvania), a plaintiff must establish five elements to succeed on a hostile work environment claim: (1) the employee suffered intentional discrimination because of their sex; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability. Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006) (overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)). The first four elements are required to establish a hostile work environment; the fifth element determines employer liability. Viewing the evidence presented in the light most favorable to Mandel, the Court found that a reasonable jury could infer that the alleged harassment was based on Mandel’s sex, but because Mandel provided insufficient evidence to satisfy the third element, the Court found that she failed to establish a hostile work environment.

As the U.S. District Court for the Middle District of Pennsylvania explained:

“Here, Mandel only complained about one of the alleged incidents ([the Plant Manager’s] name calling), and she complained to a friend at work and not a supervisor. Further, she has presented no evidence that she had any psychological distress or that her ability to perform her job was impaired. Finally, the record contains evidence that Mandel actively participated in creating a work environment in which vulgarity and sexual innuendo were commonplace. Mandel’s use of explicit language and her e-mails involving ongoing sexual jokes demonstrate a casual ease with this type of workplace behavior. The use of sexual humor does not on its own demonstrate that Mandel is incapable of being offended by degrading comments, but when combined with a lack of evidence of any subjective distress, a reasonable jury could not find that Mandel has proven that the harassment had a detrimental effect on her. Therefore, Mandel fails to provide sufficient evidence to satisfy this element.”

For that reason, the Court granted M & Q’s motion for summary judgment.

This case comes on the heels of a similar one decided by the U.S. District Court for the Eastern District of Pennsylvania in Seybert v. International Group, Inc., 2009 WL 3297304 (E.D. Pa. Oct. 14, 2009). In that case, the plaintiff sought to exclude from evidence sexually explicit emails she had exchanged with female friends and co-workers via her work computer on the basis that they were irrelevant. The District Court disagreed, holding that the emails were relevant to “whether plaintiff appreciated or was offended by possibly crass sexual humor in the workplace” and permitted them to be used at trial.

When faced with a sexual harassment or other discrimination based lawsuit, employers should conduct a search of the plaintiff’s workplace computer, and gather additional evidence which could impugn the plaintiff’s credibility. There still is no substitute, however, for a well-developed and enforced sexual harassment and anti-discrimination policy. All reported complaints by employees should be taken seriously, properly addressed and documented.

Should you have any questions about the Mandel case or would like more information about creating or updating a workplace anti-discrimination policy, please contact a Knox Labor & Employment Attorney at (814) 459-2800.

Article written by Joseph V. Balestrino.

Labor & Employment Department Attorneys


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