Joanne Fielder v. Ual Corporation, a Delaware Corporation, Dba United Airlines, Defendantappellee , 218 F.3d 973 ( 2000 )

Opinion by Judge ALDISERT; Concurrence by Judge W. FLETCHER; Dissent by Judge KLEINFELD.

ALDISERT, Circuit Judge:

This appeal by Joanne Fielder from summary judgment entered by the district court, a magistrate judge presiding, presents questions of hostile work environment and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Issues raised by Appellant require us to decide (1) whether conduct by non-supervisory or non-managerial fellow workers may constitute actionable retaliation by the employer, a question of first impression in this court, (2) whether her claim is barred by the 300-day statute of limitations from the date the conduct occurred, 42 U.S.C. § 2000e-5(e)(l) (“[A] charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred .... ”), or is still viable because of a continuing policy and practice of discrimination or retaliation and (3) whether she is estopped from asserting a claim of constructive discharge because her resignation was not timely.

Appellant Fielder filed claims of sex discrimination, retaliation and constructive discharge against her employer, UAL Corporation, dba United Airlines. The court determined that her claims were barred by the statute of limitations and that she was estopped from asserting her constructive discharge claim because she did not timely resign. We disagree. We hold that Appellant has presented sufficient facts that give rise to genuine issues of material fact relating to statutory limitations in presenting her discrimination claims and the timeliness of her resignation.

The district court had federal question jurisdiction pursuant to 28 U.S.C. § 1331. The parties executed written consents for entry of final judgment by a magistrate judge. 28 U.S.C. § 636(c). This court has jurisdiction under 28 U.S.C. § 636(c)(3) (appeal from magistrate judge) and 28 U.S.C. § 1291. The appeal was timely filed under Rule 4(a), Federal Rules of Appellate Procedure.

Summary judgment is appropriate when the “admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Rule 56(c), Federal Rules of Civil Procedure; see Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472 (9th Cir.1989). We review motions for summary judgment de novo. Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1105 (9th Cir.1998).

I.

We must set forth in some detail the historical and narrative background of an unfortunate, if not sordid, employment relationship between Ms. Fielder and United Airlines. She began working at United Airlines in Medford, Oregon on October 23, 1978 as a permanent, part-time customer service agent (“CSA”). Her general duties included flight preparation, handling baggage, taking reservations and seating passengers. She . took a furlough from 1981 until June 1984. After returning, she continued to work for almost ten years, until April 20, 1994, when she was placed on medical leave at her request.

The record indicates that Fielder had been subject to sexual harassment for a long period of time during her employment. The series of incidents commenced when her co-worker, M.C.,¹ began to sexually harass her. She testified that he would frequently touch her shoulder, back, arms or hips while on the job. As early as 1991, she told him explicitly to stop touching her and that if he continued, she would obtain legal counsel and pursue a claim against him. Id. However, he continued this offensive conduct. In one incident, he pinned her to a departure board with his back and wiggled his rear end against her. In another incident, he picked her up and, ignoring her screams, twirled her around so hard she became ill. She has assigned no particular dates to these incidents.

On February 13, 1993, while she was checking in passengers, M.C. leaned over to her and asked her to go to bed with him. He did this in front of numerous customers during one of the busiest periods of pre-flight preparation. The public nature of this act prevented her from responding or reacting. She went home immediately after checking in her passengers. That night M.C. made the last of three obscene phone calls that he had made to her home during the period from mid-1992 to February 1993. During his third call, he repeatedly asked her if she was naked and he told her he wanted to “eat” her. Five days later, Fielder reported the sexual harassment to her supervisor, Ted Bibler. Her complaint alleged unwanted touching and harassing phone calls-allegations M.C. denied when Bibler confronted him with the complaint.

A few days later, M.C. confessed to the police that he had placed the obscene phone calls, and as a result entered into a criminal diversion agreement in July 1993. After she reported him, but before the July 1993 diversion agreement, Bibler did little to protect her from M.C. Furthermore, Bibler told her not to discuss the incident with her co-workers. Conversely, M.C. was allowed to discuss the incident, and he was able to convince their co-workers that he was in the right. About once every two weeks, Fielder asked Bibler to stop both M.C.’s continuing harassment and the retaliations she was receiving from her co-workers. She alleges that Bibler did very little to assist her and refused to prevent M.C. from working her shift.² She consulted an attorney who wrote two letters on March 11,1993 and April 7,1993 to Bibler demanding that he not allow M.C. to bid onto Fielder’s shift.³

Included in M.C.’s diversion agreement was a no-contact-with-Ms. Fielder requirement, which mandated that he could not work the same shift as Fielder. However some contact was inevitable, especially during shift changes.

Bibler gave M.C. the strongest reprimand possible short of termination-a final written warning. However, Fielder testified that Bibler was unsupportive of her during the diversion agreement, and that M.C. was allowed to bid onto her shift on a number of occasions. It was only at her insistence that he was removed. Sometimes he was not removed until the night before the shift.

Other female employees complained to Bibler about M.C.’s behavior, including a complaint about an obscene phone, call. Despite other complaints about M.C.’s conduct, Fielder contends that¹ she was ostracized for reporting him to their supervisor. Joe Rossi, a co-worker, testified that other employees shunned her. While she was working, they would often refuse to answer technical questions she raised. As a result, she was less able to adequately perform her job. Fielder testified that various other incidents occurred, including an episode where she left her coat at the office and came back the next day to find it wadded up in the corner with muddy footprints on it.

Fielder states that S.R. was particularly retaliatory towards her. He was her coordinator and the employee who acted as manager in the manager’s absence. He would punish fellow employees who displeased him by withholding required job assistance. For example, two workers, a CSA and the load planner, are required to unload baggage from a plane. It was S.R.’s job as the load planner to help unload the plane. If a co-worker displeased him, he would withhold this assistance.

Fielder alleged that S.R. sexually harassed her on a number of occasions, see Plaintiff Depo. at 82, 158-159, and that S.R. made comments towards Fielder and other women employees as having “great boobs,” and “I wouldn’t use anyone else’s cock up her.” Plaintiff Depo. at 158-159. After Fielder reported S.R.’s conduct, he would withhold his plane-loading assistance. Id. at 161. S.R. also withheld job assistance for her after she put M.C. on report. Id. at 193-194.

Fielder’s attorney wrote two more letters, dated June 9, 1993 and September 3, 1993, which formally informed Bibler of the retaliatory working environment that had developed towards Fielder. The letters advised Bibler of the hostile treatment and attitudes of other employees towards Fielder.⁴ He requested Bibler address the situation and stop the retaliatory conduct of the employees.

The record indicates that the retaliatory acts continued. Rossi testified that coworkers S.R., R.M., A.H.'and L.P. became more hostile towards Fielder after she reported M.C.’s harassment; Rossi Depo. at 29. In August 1993, United representative Nellie Yuret held a seminar on sexual harassment at the Medford station. Fielder described employee Bill Bruce as “exploding” at the seminar and accusing her of fabricating the harassment by M.C. Immediately after the seminar, she spoke with Bibler and Yuret and requested that they approve her pending, transfer request application, in which she requested a move to Portland or Seattle. Assuming that her transfer application would be granted, she put a bid on a condominium in Portland shortly after the seminar. United challenges this finding, emphasizing there was testimony that Fielder did not want to leave Medford and that she thought the situation would just continue in any city where she transferred.

A co-worker and intermediate supervisor, R.M., screamed at Fielder in front of other employees telling her she had her “head up her ass.”' Rossi testified that R.M. did this because he blamed her for M.C.’s inability to be on the same shift as her. He said that on another occasion R.M. told her that she was “neurotic and sick.” One day when she walked into the airport coffee shop, R.M. told her to “leave ... [y]ou are not welcome here.” Fielder also testified that R.M. delayed a flight to protest M.C. not being able to work the same shift as Fielder.⁵

She testified that the environment was so hostile towards her that she would cry in the restroom almost daily. Cecilia Johnson, a co-worker, agreed that the working environment was stressful and that employees often retaliated against Fielder.⁶ Others testified that the environment was generally hostile to women. Rossi claimed that on the ramp, where the work is very physical, some of the men would consistently give the harder work to women.

Fielder went-to Bibler and asked him “[p]lease, when the diversion agreement is up, please keep him away from me. I’m very much afraid of him.” E.R. at 15. When M.C.’s criminal diversion program was coming to an end, she tried to arrange a meeting with Bibler, M.C. and others to work out an agreement regarding M.C.’s conduct if he were allowed to work on her shift. Fielder testified that she

wanted to iron out some safeguards for me, so that I could feel comfortable with M.C. on my shift. I had finally realized that there was nothing else I could do to keep him' off of my shift. So I thought, perhaps, if we have some concrete rules and regulations on paper, that everyone agrees to and signs, that we could work together.

E.R. at 17. Bibler refused to hold the meeting. He told her that M.C. would have to commit some other improper act before United would take any further action to protect her. She made clear that she wanted United to guarantee that she would be physically separated from M.C., free of his harassment and that she would not have to work the gate with him. Bibler refused these demands. Id.

Fielder was warned by M.C.’s diversion officer that he is “one of the scariest of his types, because he’s smart enough to walk with one foot on both sides of the line.” Plaintiff Depo. at 252. Fielder testified that because of that statement and her past experiences, she was extremely worried that he might hurt her. As a result of Bibler’s refusal to have the meeting or otherwise guarantee her safety, Fielder went on medical leave April 20, 1994. She told Johnson she was leaving and that “there was just too much that had gone on, and she would not work at the Medford station again.” E.R. at 27. Because her request for transfer was still pending, it is unclear if Fielder meant she would never work for United again or not in United’s Medford station.

Fielder made a successful claim for worker’s compensation on August 18,1994, and the date of injury was listed as April 20, 1994. Thereafter, she began attending rehabilitation therapy sessions approximately three times a week. On September 1, 1994, Fielder returned to the airport to escort her mother onto a United flight. After she boarded the aircraft, Rossi came onto the plane and, in front of the flight attendants, passengers and her mother, told her that Bibler wanted to see her in his office immediately and that there was “some trouble with [her] co-workers with [her] being on the airplane.” E.R. at 21. When she reported to Bibler, he told her she was causing an upheaval at the airport and that she “showed poor judgment coming out to the airport at all.” Fielder Depo. at 284. She claims the reprimand was public, because one could hear through his office doors and she saw two of her co-workers standing within a few feet of the door when she left.

Fielder testified that the reprimand left her with the impression that she should no longer go to the Medford airport for any reason. Fielder Depo. at 284. As a result, she did not return to Medford airport; whenever she had to fly, she went to Portland, Eugene or Redding. She testified that she did not want to go to the Medford airport because she believed Bibler’s reprimand gave tacit approval to her co-workers to retaliate against her if she returned.⁷

Bibler testified that he spoke with Fielder to explain the frustration other employees felt because she came to the airport while on medical leave to assist her mother onto a flight. He claimed that he did not know her mother was disabled or that she was helping her onto the aircraft. He simply thought she went with her mother to talk to her and see her off. However, he admitted there is no policy against an employee seeing off a relative.⁸

Rossi testified that employees have an informal practice of escorting their family members onto flights. He also admitted that he typically escorts his children onto aircrafts.

United did not act on Fielder’s transfer request. Instead, in Fall 1994, United transferred another worker to Seattle, Johnson, who had less seniority than Fielder. Johnson testified that she was amazed how quickly her request was approved.⁹ On May 10, 1995, Fielder’s doctor released her to go back to work on the condition that she not work at United.

On May 9, 1995, Fielder filed an unlawful employment practices complaint against United with the Oregon State Bureau of Labor and Industries and on October 25, 1995, a complaint in the district court. The court granted United’s motion for summary judgment and dismissed the ease because the discrimination had not taken place within the 300-day limitations period and Fielder’s resignation was not timely to qualify as constructive discharge.

II.

Before a suit may be filed under Title VII, 42 U.S.C. § 2000e, a plaintiff must either file a complaint with the Equal Employment Opportunity Commission within 180 days of the alleged violation or within 300-days if the plaintiff initially instituted proceedings with the appropriate state agency. 42 U.S.C. § 2000e-5(e)(l); see also Mueller v. Los Angeles Fire Dep’t, 637 F.2d 616, 617 (9th Cir.1980).

Because Fielder filed an unlawful employment practice complaint with the Oregon State Bureau of Labor and Industries on May 9, 1995, it is the 300-day period that we must address. We recognize and emphasize that this limitations period covers those incidents that occurred between July 14, 1994 and May 9, 1995. Conduct that took place prior to the period is not actionable unless the continuing violation theory applies, see Draper, 147 F.3d at 1107, and it is this theory that commands our attention here.

[A] systematic policy of discrimination is actionable even if some or all of the events evidencing its inception occurred prior to the limitations period. The reason is that the continuing system of discrimination operates against the employee and violates his or her rights up to a point of time that falls within the applicable limitations period....

Green v. Los Angeles Cty. Superintendent of Sch., 883 F.2d 1472, 1480 (9th Cir.1989) (citing cases).

A plaintiff satisfies the continuing violation doctrine when he or she shows a “continuing policy and practice of discrimination on a company-wide basis” and that “[the] policy and practice operated at least in part within the limitation period.” Id. It applies also when a plaintiff alleges a “series of related acts, one or more of which falls within the limitations period” and when only a few discriminatory acts took place during the limitations period, but these acts were part of an ongoing unlawful employment practice. Id.

Fielder alleges that a company-wide policy and practice of discrimination resulted in a hostile work environment, contending that her manager, Bibler, contributed to the hostile work environment and that United failed to remedy the hostile work environment created by M.C. and her coworkers in violation of 42 U.S.C. § 2000e-2 (sex discrimination). The mere presence of her harassers in the workplace, she argues, maintained the hostile work environment during the limitations period and thus comes within the rubric of a continuing violation theory.

Fielder also alleges that she was subject to a series of related discriminatory and retaliatory acts, because her managers or supervisors retaliated against her and encouraged employee retaliation against her for reporting sexual harassment in violation of 42 U.S.C. § 2000e-3(a) (“It shah be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice.... ”). Fielder claims that she is permitted to sue for previous acts of discrimination, not just for those that fell within the limitations period, because the conduct prior to July 14, 1994 was sufficiently related to subsequent events.

To survive a motion for summary judgment for failure to satisfy the period of limitation requirement, a plaintiff must raise “a genuine issue of disputed fact as to the existence of a continuing violation,” Draper, 147 F.3d at 1108, and must also “demonstrate that a genuine issue exists as to whether the violation continued into the relevant period of limitations.” Id. Fielder is required to raise a sufficient question as to whether the sex discrimination and retaliation that occurred prior to July 14, 1994 continued into the 300-day period.

Because the legal elements of the various Title VII violations-hostile work environment and retaliation-are different, “[w]e consider the allegations with respect to each theory separately, in determining whether any of the events underlying these claims occurred within the relevant period of limitations.” Id.

III.

We now must meet a threshold question of whether conduct by co-workers who are not supervisors may impose liability on the employer on a retaliation claim, a question that is open in this court. Clearly, employers may be held vicariously liable for hostile work environments created by supervisors. Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 2270, 141 L.Ed.2d 633 (1998).

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence.

Id. at 524 U.S. at 765, 118 S.Ct. at 2270. We must now decide if an actionable hostile work environment can be created by lower-level employees.

In Gunnell v. Utah Valley State College, 152 F.3d 1253, 1264 (10th Cir.1998), the Court of Appeals for the Tenth Circuit concluded that employers may be liable for retaliation by co-workers, because adverse employment actions are not limited to ultimate employment decisions. The court explained that “co-worker hostility or retaliatory harassment, if sufficiently severe, may constitute ‘adverse employment action’ for purposes of a retaliation claim.” Id. To decide whether we should adopt this approach, we may look for guidance in decisions from other courts. Adverse employment actions include “employer actions such as demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations and toleration of harassment by other employees.” Wyatt v. Boston, 35 F.3d 13, 15-16 (1st Cir.1994) (emphasis added); see also Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir.1996) (“Nothing indicates why a different form of retaliation-namely, retaliating against a complainant by permitting her fellow employees to punish her for invoking her rights under Title VII-does not fall within the statute.”).

We are of the view that the interpretation of an adverse employment action as expressed by the Courts of Appeals of the First, Seventh and Tenth Circuits is consistent with the plain language of 42 U.S.C. § 2000e-3, which makes it “unlawful to discriminate against any ... employees.” As the Wideman court explains, “the term ‘discriminate’ is not limited to ‘ultimate employment decisions.’ ” Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir.1998). If the statute were to be interpreted in a strict manner, employers could retaliate at will so long as the retaliation does not constitute an ultimate employment decision or rise to the level of a constructive discharge. Id. Because we have traditionally recognized the vital remedial role of Title VII, we hold, therefore, that Title VII’s protection against retaliatory discrimination extends to employer liability for co-worker retaliation that rises to the level of an adverse employment action.

IV.

We now must decide the crucial question of whether Appellant met her burden of setting forth sufficient facts of a hostile work environment to constitute a genuine issue of material fact to preclude summary judgment against her. Her contention is anchored on the theory that the events that took place after the 300-day time period came within the rubric of the continuing violation theory.

A hostile work environment exists when a plaintiff shows; “(1) that he or she was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; (2) that this conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Ellison v. Brady, 924 F.2d 872, 875-876 (9th Cir.1991). We examine elements of these claims from the perspective of a reasonable person of the victim’s gender-here, from the perspective of the “reasonable woman.” Id. at 883.

“A ‘hostile work environment’ occurs when there is a pattern of ongoing and persistent harassment severe enough to alter the conditions of employment.” Draper, 147 F.3d at 1108. Most instances of hostile environments are not capable of facile identification. “[Ijnstead, the day-to-day harassment [is] particularly significant, both as a legal and a practical matter, in its cumulative effect.” Id. To satisfy the continuing violation theory, the plaintiff must show that a hostile environment exists and it continued into the period of limitations.

A.

We are satisfied that Fielder met the first prong of proving the continuing violation. She ably presented abundant evidence to show a hostile environment, contending that the conduct of her manager, Bibler, fostered an environment that “allowed fellow employees to harass, defame and discriminate” against her. Employers may be held vicariously liable for failing to remedy sexual harassment by employees when management knew or should have known of the harassing behavior. Burrell v. Star Nursery, Inc., 170 F.3d 951, 955 (9th Cir.1999). She alleges that management had actual knowledge of the harassment and retaliation by employees, such as M.C., R.M. and S.R., because she and her attorney brought it to her supervisors’ attention a number of times.

Fielder testified that she was subjected to sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature and that M.C. began harassing her in 1991, three years before she went on disability leave. She testified that he touched her shoulder, back, arms or hips while she was on the job and described incidents when M.C. “wiggled” his rear end against her and twirled her around so hard she became sick to her stomach. He also committed phone harassment against her on three separate occasions, which included vulgar sexual propositions and sexually inappropriate comments.

The Supreme Court teaches that “[t]he correct inquiry is whether [appellant] by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation ... was voluntary.” Meritor Savings Bank v. Vinson, 477 U.S. 57, 68, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). When Fielder threatened to bring legal action against him, she made it clear to M.C. that his conduct was unwelcome. Moreover, the numerous complaints communicated to her supervisor and others made it clear to United that M.C.’s conduct was unwelcome. We now turn to the second, and more difficult, question: Did the hostile environment continue into the period of limitations?

B.

We have previously reserved the question of whether Title VII limitations period requires an overt “act” within the period or whether the mere presence of the harasser in the workplace is sufficient to give rise to employer liability. Draper, 147 F.3d at 1108 n. 1. We have stated that “we reserve decision as to whether requiring such a showing is appropriate in the context of a hostile work environment claim, given that a hostile work environment is ambient and persistent, and that it continues to exist between overt manifestations.” Id. We do not meet this question here, as urged by Appellant, because we are satisfied that at least two overt acts did take place and they relate to the question of discrimination as well as retaliation. We are persuaded that although we should consider allegations of discrimination and retaliation separately, much of the evidence presented by Appellant is germane to both concepts.

We first look to see if the acts during the 300-day period of limitations involve the same type of discrimination as those committed before the period. We must inquire whether there is a common type of discrimination, such as sexual or gender-based harassment, or if there is a common kind of employment action, such as repeated denial of a promotion. See Wattman v. International Paper Co., 875 F.2d 468, 475 (5th Cir.1989); Glass v. Petro-Tex Chemical Corp., 757 F.2d 1554, 1561 n. 5 (5th Cir.1985). Every incident of discrimination before the limitations period need not be of the same type, so long as there is a corresponding type of discrimination within the period.

C.

The first episode within the relevant period is the reprimand Fielder received from Bibler for escorting her mother onto the plane. This incident may be considered an example of discrimination and has the capacity to reflect co-worker retaliation, employer retaliation and refusal to remedy a hostile working environment. Bibler called Fielder into his office in response to complaints by her co-workers. They may have complained because she was out sick or they may retaliated against her because she reported M.C.’s conduct. It is unlikely that they objected only to the act of escorting her mother onto the plane because, as the record indicates, United employees often escorted their family members onto their airline’s flights. It is an issue of a material fact whether these employees sought to have Fielder disciplined for non-discriminatory reasons, i.e., whether they were simply unhappy that she was on sick leave while escorting her mother or whether they were retaliating for her protected activity. So long as the conduct has the capacity of being considered retaliatory, it becomes an issue for the fact finder. Whether Bibler reprimanded Fielder in public in retaliation for making complaints against M.C. or for other reasons is also appropriately a jury question. His admonition could be considered retaliatory because the language he chose, telling her she “showed poor judgment coming out to the airport at all,” may have reasonably left Fielder with the impression that she should not go to the Medford airport again. Nevertheless, it could have been for a non-discriminatory reason. It is also a disputed issue of fact whether Bibler’s reprimand encouraged retaliatory behavior against Fielder by her co-workers. Fielder had a fear of reprisals from other employees who might purposefully lose her luggage or engage in other retaliatory acts, because they had done these acts in the past and because Bibler’s rebuke indicated that Fielder was not welcome at the airport.

If a jury finds that Bibler’s reprimand was an act of retaliation, it becomes an issue of fact whether the retaliation was of the same kind alleged before the 300-day period. The retaliatory acts by management, before the period of limitations, were Bibler’s refusal to prevent M.C. from bidding onto Fielder’s shift before the diversion agreement, acting manager S.R.’s refusal to give her required job assistance and supervisor R.M.’s screaming at Fielder that she had her “head up her ass,” telling her she was neurotic and sick and later telling her she was not welcome in the airport coffee shop. Fielder alleges that the motive behind these acts was retaliation against her for reporting M.C.

It is for the jury to decide also whether the motive for the employee retaliation was the same before and after July 14, 1994. Fielder alleges that employees would refuse to answer her technical questions, thus preventing her from adequately doing her job, that her coat was soiled by co-workers and employee Bruce publicly accused her of lying about M.C.’s harassment during a sexual harassment seminar. There is also testimony from Rossi that the attitudes of Fielder’s co-workers became much more hostile towards her after she reported the harassment.

D.

We turn now to United’s refusal to transfer Fielder. The refusal to transfer her may be evidence that United failed to take steps reasonably calculated to remedy a hostile work environment, see Burrell, 170 F.3d at 955, and this constitutes an overt act. Fielder expressed a willingness to move to a different city so that she could continue to work for United. She offered to remedy the problem by transferring, but United declined to take any action, thereby maintaining the status quo hostile environment. The brute fact is that a person with less seniority received the transfer. The transfer issue, too, presents a jury question on the issues of discrimination and retaliation.

V.

Generally, to determine whether the continuing violation doctrine applies, “[the] question ... boils down to whether sufficient evidence supports a determination that the alleged discriminatory acts are related closely enough [to the acts outside the limitations period].” Green, 883 F.2d at 1480-1481 (internal quotations and citations omitted). The Court of Appeals for the Fifth Circuit set forth a number of factors to assist in determining the presence vel non of a close relationship in Berry v. Board of Supervisors, 715 F.2d 971, 981 (5th Cir.1983), but we are not convinced that this analysis is properly suited for a hostile work environment.¹⁰ Rather, we are satisfied with our previous teachings in this respect:

A continuing violation may thus be established by not only demonstrating a company-wide policy of practice, but also by demonstrating a series of related acts against a single individual.... In the later instance, “[the] question ... boils down to whether sufficient evidence supports a determination that the ‘alleged discriminatory acts are related closely enough to constitute a continuing violation.’ ”

Green v. Los Angeles County Superintendent of Schools, 883 F.2d at 1480-1481 (citing Bruno v. Western Elec. Co., 829 F.2d 957, 961 (10th Cir.1987)); see also Draper, 147 F.3d at 1109 (refusing to view “snide laughter and humiliating response” as an isolated event without reference to the circumstances in which it occurred in a hostile environment case).

We are satisfied that adopting the rationale in Green and Draper is sufficient enough for us to conclude here that the two overt acts occurring within the limitations period were so closely related to the acts of discrimination and retaliation previously experienced by Ms. Fielder as to trigger the operation of a continuing violation theory. We are satisfied that considering the totality of circumstances here, the episode relating to escorting her mother onto the plane together with subsequent events relating thereto, and the denial of her transfer request were closely related enough to constitute a continuing violation. Accordingly, we conclude that the district court erred in determining otherwise.

VI.

We turn now to the question of whether Fielder’s charge of constructive discharge was properly dismissed by the district court as being untimely. The court based the dismissal of Fielder’s constructive discharge claim on three alternative theories. It first determined that the claim was time-barred because the statute of limitations began to run when Fielder went on medical leave on April 20, 1994, rather than when she failed to return to work after the end of her medical leave on May 10, 1995. To the extent her claim was based on sexual discrimination, it determined that the constructive discharge claim was time-barred because the sexual discrimination by M.C. ended in February 1993. To the extent the claim was based on retaliation, it determined that the claim was barred because Fielder waited eight months after the alleged reprimand before quitting.

A.

Subsequent to the magistrate judge’s decision in this case, this court held that the limitations period for a constructive discharge claim begins to run on' the date of an employee’s resignation. Draper, 147 F.3d at 1111. Fielder resigned on May 10, 1995. We have said that “[a] constructive discharge occurs when a person quits his [or her] job under circumstances in which a reasonable person would feel that the conditions of employment have become intolerable.” Id. at 1110. Constructive discharge takes place when an individual “has simply had enough; [he] or she simply can’t take it anymore.” Id. Fielder has presented ample evidence from which a jury could find an intolerable working environment. Her evidence shows examples of retaliatory acts by her co-workers, such as withholding required help on the job, trampling on her coat with muddy feet and publicly accusing her of fabricating sexual harassment claims. She has also presented evidence of retaliatory acts by management, such as screaming at her in front of her coworkers, allowing co-workers to retaliate against her and allowing M.C. to bid onto her shift. Thus, Fielder has averred sufficient evidence for a jury to find a constructive discharge.

The key issue before this court is whether Fielder’s resignation was timely for purposes of constructive discharge. The teaching in Draper instructs us that the date of the resignation triggers the limitations period in a constructive discharge case. Id. at 1110. We believe that events occurring within the limitations period prior to her resignation on May 10, 1995 — accompanying her mother onto the aircraft on September 1, 1994 and the transfer of co-worker Johnson in the fall of 1994 — are sufficient to conclude that her resignation was not untimely. We con-elude, therefore, that the court erred in concluding that she was estopped from asserting this claim.

„

A question arises as to whether Fielder’s constructive discharge claim is barred because it was not part of her complaint, which pre-dated her date of resignation. She filed her Bureau of Labor and Industries complaint on May 9, 1995 and resigned on May 10, 1995. The general rule is that incidents of discrimination that are not included in an EEOC or state agency charge may not be considered by a federal court unless “the new claims are like or reasonably related to the allegations contained in the EEOC charge.” Green, 883 F.2d at 1475-1476. To determine reasonable relation “the court inquires whether the original EEOC investigation would have encompassed the additional charges.” Id. “Finally, the remedial purpose of Title VII and the paucity of legal training among those whom it is designed to protect require charges filed before the EEOC to be construed liberally.” Id.

Fielder’s constructive discharge claim is reasonably related to the discrimination and retaliation claims that were included in the complaint, because all three claims are based upon the same actions and conduct. Therefore, the administrative investigation should have included the constructive discharge and Fielder has not forfeited her right to pursue it in federal court.

‡ ‡ $

We have considered all contentions raised by the parties and conclude that no further discussion is necessary. We hold that Fielder’s claims of sex discrimination and retaliation are not time-barred and she is not estopped from asserting her claim for constructive discharge. We conclude also that there is a genuine issue of material fact whether the events occurring within the 300-day period come under the ambit of the continuing violation period. The judgment of the district court is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED

1 . Because this matter will go to trial, we have decided not to refer to certain parties by their names.

2 . Fielder explained the working environment and her response to it in her deposition:

Ted [Bibler] would constantly say, Joanne, I can’t make them like you. As if he could do nothing, would do nothing, to enforce what I considered the company’s responsibility to provide a decent working environment, so I could check in those busy flights and do those gate operations.... From the time I came forward, until the diversion agreement, [M.C.] was trying to bid on my shift. And I was scared to death of [M.C.]. And each and every time, in order to keep from working on my shift, I had to go to [my attorney].... I had to get letters, which I could take back to United Airlines, which said: Don't put this guy on her shift until this matter has been settled.

That is something I perceived as hostility and lack of support and protection from my company.... I, the person who came forward to report this crime, was put at odds with my co-workers.... Ted also informed me not to say anything about this situation to any of my coworkers.

And I quote, he said it would polarize the office. Well, immediately started to retaliate against me, when I came forward that day to report him.... [He put] my ex-husband’s return address in the front of his mailbox.... But went and told the other agents what had happened. And people seemed to be taking his side.

Sides were taken at the very beginning, before any of the information, as I had been told, was even put out. Ted didn’t want anyone to know about it. And then they were ganging up against me, as if I had been overreacting or something.... I was afraid, yet I was told to say nothing. Meanwhile the rumor mill grinds on, and Ted does nothing. Plaintiff Depo. at 200-202.

3 . Her attorney’s April 7, 1993 letter read:

[M]y client is extremely concerned about this situation, given the fact that in your letter you indicated that [M.C.] may be reassigned to Ms. Fielder's shift in the very near future. As you are aware, a criminal charge has been filed against [M.C.], which directly relates to his dealings with Ms. Fielder. At this point, [M.C.] has a court appearance scheduled for May 3, 1993 on that criminal charge. That court appearance may or may not the end of the court proceedings.

It is important for you, as Ms. Fielder’s supervisor, and United Airlines, as her employer, to be aware that her emotional condition cannot, and will not, tolerate any contact with [M.C.] under these circumstances. The difficulty which has been created with regard to scheduling is the result of [M.C.’s] actions, not those of my client. A risk does occur that returning [M.C.] to Ms. Fielder’s shift could lead to an occupational injury claim on her part as a result of the stress that this situation would place on her.

Letter from Mueller to Bibler of 4/7/93, at 1.

4 . The pertinent portion of the April 11 letter reads:

Under the United Airlines code of conduct, ah employee is to be protected against retaliation for reporting a complaint of sexual harassment. Unfortunately, it appears that United Airlines is failing in this obligation to provide such protection to Ms. Fielder. On several occasions, she has reported to you conduct by other employees that does constitute direct or indirect retaliation against her. The attitude and behavior of Ms. Fielder’s co-employees toward her has changed dramatically since the incident with Mr. [M.C.] has been reported.

It is the obligation of the employer to maintain a workplace that is free of such retaliation and conduct by one employee toward another.. On behalf of my client, I would respectfully request that you address this issue with the other employees in the workplace, and see to it that no further conduct of this type occurs-in the future.

Letter from-Mueller to Bibler of 3/11/93, at 1.

5 . Fielder explained the working environment and R.M.’s reaction in her deposition:

Q: Other than not being friendly and warm toward you, and not speaking to you, what other problems, if any, were there during this time period [while M.C. was in his criminal diversion agreement]?

A: There was the daily problem of [S.R.] never backing me up on the ramp or the ticket counter. This created a constant environment of — it was hard to do your job when you knew you had to do more than what was your job. I was trying to work very, very fast to make up for the lack of support from my coworkers.

Then there was the incident of [R.M.] delaying the airplane, because [M.C.] wasn’t allowed to work an overtime shift. On that morning shift we were actually working one short. There might have only been four people on shift during that flight check in. And [R.M.] was furious because [M.C.] had signed up for the overtime and, because of the diversion agreement, [M.C.] was not allowed to work the shift. Consequently, there was more work to be spread out over Lhose of us there, than if [M.C.] had been there. Plaintiff Depo. at 193-194.

6 . Johnson testified about the work environment in her deposition.

Q: If you had to describe the working environment around the time you left, how would you describe it?

A: Stressful.

Q: Do you recall Joanne ever talking to you about the retaliation that she felt she was getting?

A: Yes.

Q: Did she discuss with you whether or not she had a talk with Ted Bibler about that?

A: Yes. I know that she did talk to Ted at several different times. I think Ted’s attitude was sort of: What do you want me to do? That kind of attitude.

Q: Did that surprise you?

A: No.

E.R. at 28.

7 . Fielder explained in her deposition her version of what happened the day she was pulled off the flight:

Q: Your complaint also alleges that you were disciplined for filing the criminal action against [M.C.] How were you disciplined?

A: I was pulled off of an airplane. I was told that my presence at the airport was causing upheaval among my coworkers, and that I showed poor judgment in coming out to the airport at all. Even though I never once approached the ticket counter to encounter my fellow employees. I proceeded directly to the gate, cleared my access to the aircraft with the gate agent, and then once, again, while wearing my badge at all times, cleared with the A flight attendant on board.

Since I was told by Mr. Bibler that my presence at the airport was causing such an upheaval, I have not stepped one foot in the Medford Jackson County Airport. I travel now out of Eugene, out of Portland, and out of Redding, whenever I want to go any place. I have been denied the right and privilege of flying out of Medford Airport by United Airlines.

Q: When you say "denied,” this is based on your conversation with Mr. Bibler resulting from the day when you were assisting your mother?

A: That is correct. And also the hostile environment that I know still exists at United Airlines against me, which I know that I would not be — I do not feel that I could check baggage or check into a flight and board an aircraft at this airport free from sabotage, interference, derogatory comments, or other harm.

Q: What other type of harm?

A: Being put in a seat which would be uncomfortable. Having someone seated next to me intentionally, who would be offensive. The guys used to do that, put people next to people who would bother other people, just to get even with them. Or delay a bag being checked, or check it someplace and hold it back. Or have some little mistake, which would inconvenience a flight and make it uncomfortable. I know how they feel about me. I'm not going to put myself in .harms way or cause problems for myself or for them.

Q: And you feel that Mr. Bibler’s comments to you that day were a disciplinary action?

A: Yes, I do. Ted set the tone of the office, which said Joanne was reprimanded for being out there, and I was not welcome at that airport.

Q: [I ask you if there was anybody else in the office] because your complaint alleges that you were publicly reprimanded and harassed for assisting your disabled mother onto the airline.

A: Well, [S.R.] and [R.M.] and [A.H.] had gone to Ted [Bibler]. They all saw me go in there to talk to Ted. The walls are thin. When I came out, [two co-workers], I believe were standing within two or three feet of the door. You can hear through the door.

Q: So even though you were in an office with a closed door, you feel you were publicly reprimanded and harassed?

A: Yes, because I was publicly pulled off of that airplane in front of other passengers, whom I knew. And in front of my mother, who was very upset by that incident. That was very embarrassing. And in front of the flight attendant that I had gained access from. Yes.

Fielder Depo. at 283-286 (emphasis added).

8 . Bibler also testified about the incident in his deposition:

Q: And what if anything did you do at that point?

A: Joe [Rossi] was working at the time, and I said' — you know, because of Joanne— I said, I know it's very awkward, but if she has a moment or two, I’d really like to talk to her. And Joanne came into my office after her mother left, I believe. And I said, you know, I recognize your rights Joanne, but, you know, it is a very sensitive issue in the office, and just be aware. And she got very defensive, and the conversation basically ended. I think it was probably only a minute or two long and she left the office very upset.

Q: What is the practice when an employee of United Airlines has a relative who may be disabled or may need assistance? What is the practice with that?

A: I didn’t know her mother was disabled. Is she? I don't know.

Q: Well, in general, say for example.

A: I don't know of any employee in the office — it is not a practice to go on the airplane and talk to relatives, that I’m aware of. To say it's never happened, I don't know.

Q: Is it a practice to assist relatives onto the plane, just assist?

A: Not that I'm aware of.

Q: And did Joanne ever admit to you that she had been just sitting there talking to her mother on the airplane? Did she tell you what she had been doing?

A: Yes. She was talking to her mother is what she said, seeing her mother off.

Q: Were your concerns more that other people were upset or that Joanne was violating some policy that you thought-

A: My concern was more with the sensitivity of trying to get this employee group to work together and try and understand one another, as opposed to a violation. I’m sure other employees had probably done similar things, and so forth, but I was just concerned about the process.

Q: Is there a policy against assisting?

A: A policy? No. I would say that there is — there is certainly not a policy to do it. To say that it's never been done or that it has been done, I can't say. But it's certainly not a policy to do it routinely.

Bibler Depo. at 39-42 (emphasis added).

9 . Johnson explained her transfer and Fielder’s intention to move in her deposition:

Q: At the time you moved up and transferred to Seattle, what was your seniority as compared to Joanne’s?

A: She had probably about four more years that I do. That's just a guess. But I know that she does have quite a few more years than I do.

Q: Do you remember whether or not she discussed transfer before or after you put your transfer request in?

A: It had to have been before, because when I put my transfer in, it was — to me, it was just amazing that it went through so quickly. And I wasn’t actually even prepared for it, but I did it.

Q: Did she ever discuss purchasing— "she” meaning Joanne — discuss purchasing a condo in Portland?

A: Yes.

Q: Do you remember when that was?

A: No. I know that one time we went to Portland, and we drove by a place that she had looked at with her mother.

Johnson Depo. at 60-61.

10 . Berry was an "equal pay” gender discrimination case and it set forth certain factors that may be considered whether discrete acts have the capacity to constitute a continuing violation in such a case. The court emphasized that "[t]his inquiry, of necessity, turns on the facts and context of each particular case” and stated:

Relevant to the determination are the following three factors, which we discuss, but by no means consider to be exhaustive. The first is subject matter. Do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation? The second is frequency. Are the alleged acts recurring (e.g., a biweekly paycheck) or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of most importance, is the degree of permanence. Does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of this act is to be expected without being dependent on a continuing intent to discriminate?

Berry, 715 F.2dat981.

Whatever the value of this analysis when comparing compensation according to gender, we are not persuaded that they are appropriately applicable in determining the continuation of a hostile environment.

1 . 42 U.S.C. § 2000e-5(e)(l).