                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-18-2008

Martinelli v. Penn Millers Ins Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1956




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                                                          NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                                 No. 07-1956
                                ____________

                            KAREN MARTINELLI,

                                                 Appellant,

                                        v.

                  PENN MILLERS INSURANCE COMPANY




                                ____________

                 On Appeal from United States District Court
                    for the Middle District of Pennsylvania
                            (D. C. No. 02-cv-02292)
                 District Judge: Honorable Thomas I. Vanaskie
                                 ____________

                  Submitted Under Third Circuit LAR 34.1(a)
                               March 7, 2008

           Before: BARRY, JORDAN and HARDIMAN, Circuit Judges.

                            (Filed: March 18, 2008)

                                ____________

                           OPINION OF THE COURT
                                ____________




HARDIMAN, Circuit Judge.
       In this employment discrimination case, Karen Martinelli appeals following a jury

verdict in favor of her former employer, Penn Millers Insurance Company (PMIC).

Martinelli asserts various trial errors and argues that the District Court erred in granting

PMIC summary judgment on her hostile work environment claim.

                                               I.

       Because we write exclusively for the parties, who are familiar with the facts and

proceedings below, we will not revisit them here. Martinelli first claims that the District

Court erred when it precluded testimony from one of Martinelli’s former co-workers,

Roseanna Klim, who allegedly suffered disparate treatment while employed at PMIC.

       “[A]s a general rule, evidence of a defendant’s prior discriminatory treatment of a

plaintiff or other employees is relevant and admissible . . . to establish whether a

defendant’s employment action against an employee was motivated by invidious

discrimination.” Becker v. ARCO Chemical Co., 207 F.3d 176, 194 n. 8 (3d Cir. 2000)

(internal citations omitted). But such evidence must have a proper purpose and be

admissible under Federal Rules of Evidence 401 - 403. Ansell v. Green Acres

Contracting Co., 347 F.3d 515, 520 (3d Cir. 2003). The proponent of such evidence

“must be able to articulate a way in which the tendered evidence logically tends to

establish or refute a material fact in issue, and that chain of logic must include no link

involving an inference that a bad person is disposed to do bad acts.” Id. at 520-21

(internal quotations and citations omitted).



                                               2
       Here, Klim would have testified that she performed the functions of an underwriter

but was not paid as such. The District Court found that this testimony had little probative

value in establishing PMIC’s intent to discriminate because the discriminatory nature of

the past conduct was unclear and it was dissimilar to Martinelli’s situation. We find that

the District Court did not abuse its discretion in so holding. See Hurley v. Atlantic City

Police Dep’t., 174 F.3d 95, 110 (3d Cir. 1999). As the District Court aptly noted,

evidence of prior acts is admissible where “the inference of the employer’s discriminatory

attitude came from the nature of the prior acts themselves,” but not where the evidence is

offered merely for “the purpose of establishing the fact that the employer engaged in any

particular act or course of conduct in connection with the plaintiff’s termination.”

Becker, 207 F.3d at 194 n.8. It was no abuse of discretion for the District Court to

conclude that Klim’s circumstances were not sufficiently similar to Martinelli’s to allow

an appropriate inference about PMIC’s state of mind in this case to be drawn from Klim’s

experience. At most, Klim’s testimony tended to show that PMIC underpaid employees

who were doing underwriting work, and that it was mistreating Martinelli in the same

fashion as it had previously mistreated Klim. This evidence becomes even less probative

in light of the District Court’s observation that Martinelli and Klim had different job titles

and focused on entirely different sectors of PMIC’s business.

       The difference in circumstances between Martinelli and Klim also precludes any

suggestion that Klim’s testimony should have been admitted as evidence of a pattern or



                                              3
plan to underpay women who performed underwriting work. To be admissible as pattern

or plan evidence, the two acts “must be connected, mutually dependent, and interlocking”

and must “consist of incidents [that] were sufficiently similar to earmark them as the

handiwork of the same actor.” Id. at 197 (internal citation omitted); See also J&R Ice

Cream Corp. v. Cal. Smoothie Licensing Corp., 31 F.3d 1259, 1269 (3d Cir. 1994).

Klim’s testimony falls well short of this standard.

       We are similarly unpersuaded by Martinelli’s suggestion that the District Court

erred by instructing the jury that “this case is to be decided, solely, on the employer’s

treatment of Ms. Martinelli, it has nothing to do with any other employees.” This was

nothing more than an accurate statement of the law.

       We also agree with the District Court that Martinelli was not prejudiced by the

limitations initially placed on the testimony of a former PMIC Assistant Underwriter, Ann

Bedwick pertaining to the claims she made. The District Court initially held that

Bedwick could not testify that she was considered an underwriter by the insurance agents

and brokers with whom she dealt. It also prohibited her from testifying that a male

employee, Barry Corrigan, had been suspended but not terminated for failing to keep

track of certain insurance forms. Yet Bedwick subsequently testified, without objection,

that “[t]he agents and brokers that I worked with, they considered me an Underwriter,

they didn’t know I was still an Assistant Underwriter.” Furthermore, PMIC’s Vice-




                                              4
President of Agribusiness Underwriting, Harold Roberts, testified about Corrigan’s

probation in some detail, and indicated that PMIC had not ultimately terminated Corrigan.

                                             II.

       Martinelli next argues that the District Court erred when it excluded the EEOC’s

written determination that PMIC’s treatment of Martinelli had violated Title VII. In

Coleman v. Home Depot, Inc., 306 F.3d 1333 (3d Cir. 2002), we held that “the decision

of whether or not an EEOC Letter of Determination is more probative than prejudicial is

within the discretion of the trial court, and to be determined on a case-by-case basis.” Id.

at 1345 (internal citations omitted). We stressed that “considerations of undue delay,

waste of time, or needless presentation of cumulative evidence, which are often necessary

to counter an EEOC report,” were particularly salient in this context. Id. Here, the

District Court concluded that the letter’s claim to be a “determination as to the merits,”

coupled with the fact that it originated from an authoritative government agency, could

confuse and mislead the jury and unfairly prejudice PMIC. The District Court also

concluded that the letter would provoke needless presentation of cumulative evidence.

Because these concerns were entirely consistent with Rule 403 and our holding in

Coleman, we hold that the decision to exclude the EEOC letter was well within the

discretion of the learned trial judge.




                                             III.



                                              5
       Martinelli also claims that an unfairly prejudicial comment by PMIC’s counsel

required the District Court to declare a mistrial. Our review of a district court’s decision

regarding the grant of a new trial for prejudicial conduct by counsel is deferential.

Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 207 (3d Cir. 1992). Because a

district court “is in a far better position than we to appraise the effect of the improper

argument of counsel,” Reed v. Philadelphia, Bethlehem & New England R.R. Co., 939

F.2d 128, 133 (3d Cir. 1991), we defer to its assessment of the prejudicial impact and

whether its curative instructions to the jury are sufficient to expunge the prejudicial

impact of counsel’s statements. Fineman, 980 F.2d at 207.

       Here, PMIC’s counsel asserted during his opening statement that Martinelli had

failed to exclude from an insurance policy an insured with a history of drunk driving,

which resulted in a $1 million loss to PMIC when that driver was involved in a fatal car

accident while intoxicated. We agree with the District Court that counsel’s reference to

intoxication, while perhaps improper, was not so prejudicial as to deny Martinelli a fair

trial, particularly in light of the District Court’s curative instruction and the isolated

nature of counsel’s remarks. See Salas v. Wang, 846 F.2d 897, 908 (3d Cir. 1988)

(finding “one isolated statement” to jury insufficient to warrant new trial). Martinelli’s

claim that PMIC was able “to emphasize over and over the One Million Dollar payment




                                                6
and the fact that the driver was drunk at the time of the fatality” is not supported by the

record.1

                                             IV.

       Martinelli’s final assignment of error is that the District Court erred in granting

partial summary judgment to PMIC on her hostile work environment claim. Although the

parties focus much of their argument on the question of pretext, we will affirm for the

same reasons stated by the District Court: no reasonable juror could find that the alleged

scrutiny of Martinelli’s work was objectively hostile or abusive.

       This conclusion is not altered by our suggestion in Moore v. City of Philadelphia,

461 F.3d 331 (3d Cir. 2006), that employees claiming retaliation by workplace

harassment are no longer required to show that the harassment was severe or pervasive

enough to constitute a violation of Title VII’s anti-discrimination provision. Id. at 341-42

(discussing implication of Burlington Northern & Santa Fe Railway. Co. v. White, 126 S.

Ct. 2405 (2006)). It is true that the Supreme Court’s decision in Burlington Northern

broadened the definition of retaliatory conduct, but the Court also emphasized that Title

VII was not intended to permit employees complaining of discrimination to immunize

themselves from the “petty slights or minor annoyances that often take place at work”


       1
          Martinelli can point to only one similar remark by counsel during the entire trial.
During his summation, PMIC’s counsel referenced the accident and stated “that’s the
fatality which, ultimately, cost the company a million dollars, and there’s no dispute, the
company paid that money.” Counsel then read from Martinelli’s note to a broker which
referenced the specific circumstances of the accident.

                                              7
simply by complaining of discrimination. Burlington Northern, 126 S. Ct. at 2415.

PMIC’s scrutiny of Martinelli’s work, while unpleasant and annoying, did not create the

sort of hostile work environment that would satisfy Title VII’s anti-retaliation provision.

       For all of the foregoing reasons, we will affirm the judgment of the District Court.




                                             8
