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


8-28-2008

Martinez v. Rapidigm Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2274




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 07-2274
                                     ____________

                            JACQUELINE B. MARTINEZ,

                                            Appellant

                                             v.

                                   RAPIDIGM, INC.
                                    ____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                (D.C. No. 02-cv-01106)
                     District Judge: Honorable Joy Flowers Conti
                                    ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                     June 5, 2008

         Before: FISHER, JORDAN and VAN ANTWERPEN, Circuit Judges.

                                (Filed: August 28, 2008 )
                                     ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      Jacqueline Martinez appeals the District Court’s order granting summary judgment

in favor of Rapidigm, Inc. (“Rapidigm”) on all three of her claims. Her claims included:

(1) gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e-2 et seq. (“Title VII”) and the Pennsylvania Human Relations Act, 43 Pa. Cons.

Stat. Ann. §§ 951 et seq. (“PHRA”); (2) retaliation for protected conduct under Title VII

and the PHRA; and (3) wrongful discharge under state law. For the reasons set forth

below, we will affirm the order of the District Court.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       In October 1998, Rapidigm hired Martinez, an attorney, as its Manager of

Immigration Services. In this position, she was responsible for ensuring that Rapidigm

was in compliance with federal immigration laws and regulations. Initially, she oversaw

Rapidigm’s participation in the federal green card program, which allows foreign

nationals to acquire permanent residency status in the United States. In March 2000, at

her request, she also became responsible for Rapidigm’s participation in the federal H-1B

program, which allows foreign nationals to remain in the United States to work on a

temporary basis.1

       In August 2000, Martinez sent two emails to Rapidigm’s Chief Executive Officer,

Lew Wheeler, in which she expressed her view that the H-1B program was in full


       1
        Prior to March 2000, Rapidigm used an outside consultant, John Tatalovich, for
its work with the H-1B program. However, beginning in September 1999, Martinez
refused to work on H-1B petitions unless she had full responsibility for the program.

                                              2
compliance. Nevertheless, everyone – Martinez, Wheeler, and her direct supervisor, Ravi

Amble – agreed that Rapidigm needed to hire someone to manage the H-1B program,

particularly due to the extensive demands on Martinez. Rapidigm hired John Tatalovich,

who had previously worked as an outside consultant for Rapidigm on the H-1B program.

It announced that he would begin working on September 11, 2000. Martinez did not

agree with the decision to hire Tatalovich.

       On September 1, 2000, Martinez sent an email to all of Rapidigm’s recruiters and

Human Resources personnel, informing them that “in the interim” until Tatalovich

started, they should forward any correspondence regarding H-1B petitions to the paralegal

on the “H team,” not to her or her assistant. In addition, she copied the email to Wheeler,

Amble, and Paul Freudenberg, Rapidigm’s President. Amble called Martinez, and the

two had a heated exchange. Amble told Martinez that Rapidigm would not be

implementing her plan for compliance with the H-1B program – a “homebasing”

program, in which consultants would be “homebased” at a location for at least one day to

ensure the accuracy of the H-1B petition. Martinez informed Amble that she would no

longer sign H-1B petitions because she could not verify their accuracy, and she did not

want to perjure herself. She further stated that, if she learned of fraudulent activity in the

future, she “may have a legal duty to report that.” With regard to signing the H-1B

petitions, he responded that she should “tow [sic] the line,” and she was being

“insubordinate.” Finally, he asked her, “who did [she] think [she was], . . . the Queen?”



                                              3
Later in the day, both Wheeler and Freudenberg told Martinez that she should not sign

any petitions, and she testified that she was never again asked to sign petitions.

       On September 8, 2000, Martinez received an email from the Director of Human

Resources, Coleen Sullivan, informing her that several employees had complained of a

remark Martinez made during a meeting on August 31, 2000. Sullivan asked Martinez to

refrain from similar conduct in the future. In response, Martinez stated that she was

unaware that she had made an offensive comment. She then sent a second email to

Sullivan, in which she filed a formal complaint against Amble based on their telephone

conversation.

       Sullivan responded to Martinez on September 27, 2000. She informed Martinez

that the complaint against Martinez stemmed from her “reference to the office space as

being akin to an environment where a female member of [Martinez’s] staff could perform

‘lap dances’ to a male member of the staff allowing him to place bills ‘in her g-string.’” 2

She further stated that Martinez’s discussion with Amble around the same time did not

influence the report, which Martinez had opined in her complaint against Amble. Finally,

Sullivan stated that she had investigated the conversation with Amble, and she

encouraged Martinez to report any future incidents.

       Two days later, Martinez filed a “formal complaint” against one of her colleagues,

Mark Faurie, based on two comments he made during the month of September. On one


       2
           Martinez does not dispute that she made this statement.

                                               4
occasion, Faurie commented that Martinez was “enforcing [her] Second Amendment

rights . . . the right to bare arms,” referring to her sleeveless shirt. On another occasion,

Faurie responded to Martinez’s assistant’s complaint of fatigue by stating that, “if [he]

had known that [Rapidigm would] be hiring such good-looking women, [he] would have

kept the couch.”

       In February 2001, Rapidigm began examining the efficiency of its Immigration

Department and concluded that it was not running as efficiently as possible due to the

separation of the green card and H-1B groups. In May 2001, it sought a “Request for

Proposal” from immigration attorneys to determine alternate ways in which to meet its

needs and comply with the immigration laws. Reed Smith LLP (“Reed Smith”) submitted

a proposal, suggesting (1) outsourcing all work; or (2) retaining five or six paralegals who

would work under the oversight of attorneys at Reed Smith. It further suggested

reorganizing the green card section first, and then turning the focus to the H-1B section.

       On August 1, 2001, Rapidigm terminated Martinez (as well as three other

employees of the green card section).3 On June 20, 2002, Martinez instituted this

litigation in the District Court for the Western District of Pennsylvania, asserting three

claims: (1) gender discrimination under Title VII and the PHRA based on a hostile work




       3
       Tatalovich resigned the next day, effective August 15, 2001. In October 2001, at
the suggestion of Reed Smith, Rapidigm hired Julie Shymansky as its Director of
Operations, Immigration Services. Reed Smith continues to provide oversight to
Rapidigm’s Immigration Department.

                                               5
environment and her termination; (2) retaliation under Title VII and the PHRA; and

(3) wrongful discharge under state law. Rapidigm filed a motion for summary judgment

on all three of these claims. On March 29, 2007, the District Court granted the motion for

summary judgment in favor of Rapidigm. Martinez filed this timely appeal.

                                             II.

       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367(a), and

we have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a

District Court’s decision to grant a motion for summary judgment, viewing the facts in

the light most favorable to the non-moving party. Moore v. City of Phila., 461 F.3d 331,

340 (3d Cir. 2006). Summary judgment is proper if “there is no genuine issue as to any

material fact, and . . . the moving party is entitled to a judgment as a matter of law.” Fed.

R. Civ. P. 56(c).

                                             III.

                                             A.

       Martinez argues that the District Court erred in granting summary judgment in

favor of Rapidigm on her gender discrimination claims. First, she argues that she could

demonstrate, as a matter of law, that Rapidigm violated Title VII because its hostile work

environment constituted gender discrimination. For Martinez to succeed on her claim,

she must demonstrate that: “(1) [she] suffered intentional discrimination because of [her]

sex, (2) the discrimination was pervasive and regular, (3) the discrimination detrimentally



                                              6
affected [her], (4) the discrimination would detrimentally affect a reasonable person of

the same sex in that position, and (5) the existence of respondeat superior liability.” 4

Weston v. Pennsylvania, 251 F.3d 420, 426 (3d Cir. 2001).

       For the purposes of this analysis, we will assume that any discrimination Martinez

suffered occurred “because of” her gender, and thus, we must examine whether, under the

totality of the circumstances, the alleged harassment was sufficiently severe or pervasive

to constitute a hostile work environment. See Jensen v. Potter, 435 F.3d 444, 452 (3d Cir.

2006). In doing so, we consider the following factors to determine if the harassment was

sufficiently severe and pervasive: “the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere offensive utterance;

and whether it unreasonably interferes with an employee’s work performance.” Harris v.

Forklift Sys., Inc., 510 U.S. 17, 23 (1993).

       Martinez asserts that the harassment she endured during her three-year tenure at

Rapidigm consisted of the following: on one occasion, Amble berated her on the

telephone for twenty minutes during which he asked her if she thought she was “the

Queen”; Faurie’s comments regarding her right to “bare arms” and the couch; she was

initially not invited to attend a conference in Las Vegas, Nevada (but after asking, she

received an invitation and went to the conference); she overheard comments of a sexual




       4
       The analysis is the same under Title VII and the PHRA. See Weston v.
Pennsylvania, 251 F.3d 420, 425 n.3 (3d Cir. 2001).

                                               7
nature about another female attorney at a Christmas party; and a few other similar

comments. However, the events she alleges do not go beyond “[o]ccasional insults,

teasing, or episodic instances of ridicule[, which] are not enough.” Jensen, 435 F.3d at

451. Therefore, we conclude that she did not suffer severe and pervasive harassment.

See Jensen, 435 F.3d at 452 (concluding that severe and pervasive harassment existed due

to the “pounding regularity” of “retaliatory insults two to three times per week for 19

months,” physical threats, and property damage to the plaintiff’s vehicle).

       Moreover, Martinez cannot demonstrate that she subjectively perceived the work

environment at Rapidigm as hostile or abusive due to her own conduct. The District

Court succinctly described Martinez’s conduct while at Rapidigm: “[s]he used words like

‘bitch’ to describe herself in emails, mentioned the potential for a ‘lap dance’ in public,

placed a colleague’s picture on an internet dating site, and sent explicit, obscene and

shocking email correspondence of a sexual nature to colleagues within the company.”

We further note that this shocking email correspondence did not consist of one or two

email forwards of a questionable nature, but instead constitutes over one-hundred fifty

pages of this record on appeal and contains explicit words and images. Where the

plaintiff contributes the same type of conduct of which he or she is complaining to the

employer’s work environment to the degree that Martinez has, we conclude, as a matter




                                              8
of law, that the plaintiff would not find the work environment hostile or abusive.5

Therefore, Martinez could not demonstrate a prima facie case for her hostile work

environment claim.

       Second, Martinez argues that she could demonstrate, as a matter of law, that

Rapidigm violated Title VII by terminating her due to her gender. Martinez meets the

requirements for her prima facie case under the burden-shifting test applicable in Title

VII cases because (1) she is a woman, and thus, a member of a protected class (gender);

(2) she was qualified for the position she held; (3) Rapidigm terminated her position; and

(4) Rapidigm “retained employees who do not belong to the protected class.” Tomasso v.

Boeing Co., 445 F.3d 702, 706 n.4 (3d Cir. 2006). In turn, Rapidigm met its burden of

production in establishing a “legitimate, nondiscriminatory reason” for terminating

Martinez’s position. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

That is, Rapidigm sought a proposal to run its Immigration Department more effectively,

and attorneys from Reed Smith suggested reorganizing the department so that its

attorneys oversaw the work of five or six paralegals.

       Thus, the issue is whether Martinez demonstrated “by a preponderance of the

evidence that the legitimate reasons offered by the defendant were not its true reasons, but

were a pretext for discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.




       5
        We reject Martinez’s argument that this conclusion is a credibility determination
that only a jury can make.

                                             9
133, 143 (2000). To do so, Martinez must present evidence from which a reasonable

factfinder could infer that the reason was “a post hoc fabrication” or “did not actually

motivate the employment action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)

(internal citation omitted). Martinez points to Wheeler’s statement that he and Amble

made the decision to terminate her, that Tatalovich was not terminated the same day she

was, the “ongoing harassment” discussed above, and petty instances of disparate

treatment regarding the mail, supplies, space heaters, and new chairs. She also alleges

that Rapidigm treated the complaint she filed against Amble differently than it did the

complaint filed against her for the “lap dance” comment. However, we conclude that

these instances do not demonstrate “such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions” that a reasonable factfinder could find that Rapidigm’s

decision to terminate her was a pretext for gender discrimination against her. Fuentes, 32

F.3d at 764.

       Therefore, the District Court did not err in granting summary judgment in favor of

Rapidigm on her Title VII and PHRA claims for gender discrimination.

                                             B.

       Martinez also argues that the District Court erred in granting summary judgment in

favor of Rapidigm on her claim of retaliatory discharge in violation of Title VII. For

Martinez to establish her prima facie for this claim, she must demonstrate that: (1) she

engaged in protected conduct; (2) Rapidigm took an adverse employment action against



                                             10
her; and (3) a causal link exists between her protected conduct and the adverse

employment action. See Moore, 461 F.3d at 341. The burden-shifting framework again

applies, and Rapidigm must present a legitimate, non-discriminatory reason for its

decision, which as we have decided above, it has. See id. Thus, Martinez must also

demonstrate pretext, that is, she “must be able to convince the factfinder both that the

employer’s proferred explanation was false, and that retaliation was the real reason for the

adverse employment action.” Id. at 342 (internal quotation marks and citation omitted).

       Martinez claims that Rapidigm terminated her because she reported Amble’s and

Faurie’s inappropriate conduct. Regardless of whether Martinez can demonstrate that her

reports constituted “protected conduct,” she cannot demonstrate the causal connection

between her reports and her termination. To establish a causal connection, she would

need to demonstrate either (1) a temporal proximity between the two events that is

“unusually suggestive” of retaliation, see Williams v. Phila. Housing Auth. Police Dep’t,

380 F.3d 751, 760 (3d Cir. 2004); or (2) timing plus other evidence, which generally

includes evidence that the employer engaged in a “pattern of antagonism” with the

plaintiff, see Robinson v. Se. Pa. Transp. Auth., 982 F.2d 892, 895-96 (3d Cir. 1993).

Approximately eleven months separated Martinez’s report and her termination, and thus,

the temporal proximity is not “unusually suggestive” of retaliation. See Williams, 380

F.3d at 760 (two months is not “unusually suggestive”). Additionally, the “pattern of

antagonism” that Martinez alleges, which essentially amounts to petty intra-office



                                             11
squabbles, does not amount to the type of antagonism we have recognized. See Robinson,

982 F.2d at 895 (concluding that a “pattern of antagonism” existed because the employer

engaged in a “constant barrage of written and verbal warnings . . ., inaccurate point

totalings, and disciplinary action, all of which occurred soon after plaintiff's initial

complaints and continued until his discharge”).

       Moreover, Martinez cannot demonstrate that Rapidigm’s “proferred explanation

was false, and that retaliation was the real reason” she was terminated. Moore, 461 F.3d

at 342. Therefore, the District Court did not err in granting summary judgment in favor

of Rapidigm on her Title VII and PHRA claims for retaliation.

                                               C.

       Finally, Martinez argues that the District Court erred in granting summary

judgment in favor of Rapidigm on her wrongful discharge claim under Pennsylvania law.

In Pennsylvania, the general rule is that an employer may terminate an employee for any

reason. See Geary v. U.S. Steel, 319 A.2d 174, 185 (Pa. 1974). However, Pennsylvania

courts have recognized a public policy exception to this rule. See, e.g., Shick v. Shirey,

691 A.2d 511, 516 (Pa. Super. Ct. 1997). In predicting how the Pennsylvania Supreme

Court would extend this rule, we have examined a Pennsylvania Superior Court decision

that “recognized three limited circumstances” of the public policy exception, which

include:

       “An employer (1) cannot require an employee to commit a crime [and fire
       the employee for refusing to do so], (2) cannot prevent an employee from

                                              12
       complying with a statutorily imposed duty, and (3) cannot discharge an
       employee when specifically prohibited from doing so by statute.”

Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 111 (3d Cir. 2003) (internal quotation

marks and citation omitted).

       Martinez asserts that Rapidigm terminated her because she refused to sign the

H-1B petitions, and if she had signed these petitions, she would have violated the

Pennsylvania Rules of Professional Conduct and perjury laws. She also asserts that

Rapidigm terminated her because she threatened Rapidigm that, if she learned of any

unlawful conduct, she would have a duty to report it. We agree with the District Court

that where an employer terminates an attorney for acting in accordance with the Rules of

Professional Conduct, Pennsylvania courts would recognize a claim for wrongful

discharge in violation of public policy.

       We further agree with the District Court’s analysis that Martinez cannot

demonstrate these three limited exceptions. First, Rapidigm did not require Martinez to

violate the Rules of Professional Conduct or perjury laws. Instead, both Wheeler and

Freudenberg instructed her not to sign anything that made her uncomfortable – even

petitions that were lawful. Moreover, even though Amble instructed her to sign petitions

(prior to hearing from Wheeler and Freudenberg), she has not demonstrated that any of

the petitions she would have signed were unlawful. Her speculation as to their lawfulness

is insufficient for us to conclude that any petitions she would have signed would have

violated the Rules of Professional Conduct or perjury laws. Thus, Martinez cannot

                                            13
demonstrate that Rapidigm terminated her for refusing to violate the Rules of

Professional Conduct or perjury laws. Additionally, Martinez did not report Rapidigm for

engaging in unlawful activity (until after her termination), and thus, she cannot

demonstrate that she was terminated for reporting Rapidigm. Finally, Martinez does not

advance the third theory.

       Therefore, the District Court did not err in granting summary judgment in favor of

Rapidigm on her state law claim for wrongful discharge.

                                            IV.

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




                                             14
