violation and show some factual support for her claim. Erdmann, supra at 393.
Plaintiff alleges that Rollins had a policy of discriminating against her because she was a woman. She was the only female employee at her level, and so she cannot present evidence of how other women in managerial positions were treated. Plaintiff asserts that she was subjected to a series of discriminatory comments and actions throughout the term of her employment. We find that there is "some evidence," Erdmann, supra, to support this claim. Compare Erdmann, supra, where such evidence was found lacking. Sexual innuendos and ongoing disparate treatment based on sex have been found to constitute a continuing violation. See Held v. Gulf Oil Co., 684 F.2d 427 (6th Cir. 1982). Even though the discharge in the instant case was the only event occurring within the statutory time for filing actions, the other instances are not isolated and unrelated events, but may have been part of a company policy of discrimination. These prior events were all "reasonably related," see Cuffy v. Getty Refining & Marketing Co., 648 F. Supp. 802, 810 (D.Del. 1986) and may thus be part of a continuing violation.
III. Hostile or Offensive Work Environment
As we evaluate the merits of the Title VII claims, we are cognizant of the current procedural posture of the case, namely that defendants have moved for summary judgment. We must deny this motion if plaintiff has established the essential elements of her case, such that a jury could return a verdict for her under the relevant law, see Bushman v. Halm, 798 F.2d 651, 657 (3d Cir. 1986). Only if there are no genuine issues of material fact and defendants are clearly entitled to judgment as a matter of law can we grant the motion. "The factual disputes involved in most Title VII suits preclude their resolution on summary judgment," McKenzie v. Sawyer, 221 U.S. App. D.C. 288, 684 F.2d 62, 67 (D.C.Cir. 1982), and the present case is no exception.
In Count I of her complaint, plaintiff charges that Rollins violated Title VII by creating a hostile or offensive work environment for her. Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1). Sexual harassment is actionable under Title VII if it is sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment," Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 2406, 91 L. Ed. 2d 49 (1986), quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982). The plaintiff must show that she would not have been subject to this harassment "but for" her sex, Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (6th Cir. 1986).
From the evidence developed thus far, a jury could find that plaintiff was subjected to unwelcome "harassment" (as defined in Vinson, supra,) on the basis of her sex. She allegedly was subjected to crude comments and humiliating treatment and was told by Spears that her opinion was not respected because she was a woman, all of which continued in various forms and could be found to create "a hostile or offensive environment". See EEOC Guidelines, 29 C.F.R. § 1604.11(a).
IV. Disparate Treatment
The Complaint also alleges disparate treatment relative to Rollins' failure to hire plaintiff as the permanent supervisor of Health and Safety. Plaintiff argues that the sole reason given by her employer for not giving her the position was her failure to have a certification which the candidate they did hire also lacked, but was allowed to obtain after assuming the job. Plaintiff must show that Rollins' failure to promote her was motivated by a discriminatory intent. See Wilmore v. City of Wilmington, 699 F.2d 667 (3d Cir. 1983). The Supreme Court has articulated the relevant burdens of proof for maintaining a disparate treatment case in its opinions in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). The plaintiff bears the initial burden of showing by the preponderance of the evidence a prima facie case of discrimination. The burden then shifts to the defendant to articulate some legitimate non-discriminatory reason for the adverse action. The burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not true reasons, but merely a pretext for discrimination. Payne v. Heckler, 604 F. Supp. 334 (E.D.Pa. 1985). The plaintiff can meet this last burden either directly, by showing that a discriminatory reason was the more likely motivation behind the employer's action, or indirectly, by showing that the employer's proffered explanation is unworthy of credence. Burdine, supra, at 256.
Thus, we begin by analyzing whether plaintiff has met her initial burden of showing a prima facie case of discrimination. There are four elements to the prima facie case in the context of an alleged discriminatory hiring: (1) plaintiff belongs to a statutorily protected group; (2) plaintiff was qualified for the job for which she applied; (3) plaintiff was not selected for that position; and (4) after plaintiff's rejection, the position remained open and the employer continued to seek applicants from persons with plaintiff's qualifications. McDonnell Douglas, supra, at 802. This test, while initially articulated in a failure to hire case, has been adopted for use in promotion cases. See Meyer v. Missouri State Highway Commission, 567 F.2d 804, 808 (8th Cir. 1977), cert. denied, 435 U.S. 1013, 56 L. Ed. 2d 395, 98 S. Ct. 1888 (1978).
Here, plaintiff has established the prima facie case. Elements one and three are clearly met. Element two is also met, since the man who was chosen for the position had the same qualifications as plaintiff. The fourth element is also met, since the evidence shows that not only did the employer continue to take applicants with plaintiff's qualifications after rejecting her, but the man who was hired lacked the certification plaintiff lacked and which was the purported reason for her rejection.
After plaintiff establishes the prima facie case, the burden then shifts to the defendants to allege a legitimate reason for the action. Rollins asserts that it did not make its decision because of plaintiff's sex, but it does not suggest any other reason for the decision in its briefs. Defendants have therefore not met their burden on this issue and we deny summary judgment on this point.
V. Retaliatory Discharge
Plaintiff alleges that she was discharged in unlawful retaliation for her reluctance to submit to the alleged offensive, hostile and intimidating work environment. Count II of Complaint. Retaliatory discharges are governed by § 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), which provides, in pertinent part, as follows:
It shall 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 by this subchapter, or because he has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under this subchapter.