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Kachmar v. SunGard Data Systems

March 26, 1997





On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 95-cv-01282)

Before: SLOVITER, Chief Judge, COWEN and LEWIS, Circuit Judges

SLOVITER, Chief Judge.

Argued September 10, 1996

Filed March 26, 1997


Lillian Kachmar, who held the position of senior in-house counsel for defendant SunGard Data Systems, Inc. before her employment was terminated, filed this action arising out of that termination. She raised a claim of retaliatory discharge in violation of Title VII of the Civil Rights Act of 1991, 42 U.S.C. Section(s) 2000(e), et seq., as well as a claim of sex discrimination under that statute, and included a pendent state law claim of tortious interference with prospective contractual relations. We address for the first time the application of Title VII to a plaintiff who formerly occupied an in-house counsel position.


To the extent that this appeal comes to us after the district court granted defendants' motion to dismiss the Title VII retaliation claim and the state law claim, the factual record is necessarily limited and we must decide the appeal primarily on the basis of the allegations of the plaintiff's complaint.

Appellee SunGard Data Systems, Inc. is a computer services company that specializes in proprietary investment support systems and computer disaster recovery. On April 2, 1991, Kachmar, a 1978 Villanova Law School graduate, was hired to provide legal services for the parent company and its five subsidiaries. Her immediate supervisor was defendant Lawrence Gross, SunGard's General Counsel. Defendant Donna Pedrick was corporate Vice President of Human Resources. On December 31, 1991, after nine months with the company, Kachmar received her first and only written performance appraisal from Gross. In that review, Gross gave her a favorable overall rating and stated that she was a valuable addition to the legal department. In fact, Kachmar exceeded her set goals for billable hours each year she was employed by SunGard, which entitled her to receive incentive bonuses. She was also given annual merit increases to her base salary every year she was employed.

Kachmar's employment with SunGard was uneventful until the Fall of 1992, when a series of events took place that brought her into conflict with SunGard senior management and with Gross in particular. The first incident concerned a disagreement over the salary level of a new attorney at SunGard, Sarah Armstrong, whom Kachmar had helped recruit as the third lawyer in the in-house counsel's office. Kachmar alleges that she was misled by Gross concerning the available salary for Armstrong and that she discussed with Pedrick raising Armstrong's salary to a level commensurate with Armstrong's qualifications. At that time, Kachmar further complained to Pedrick that she herself was being under-compensated according to SunGard's internal practices and procedures.

The second incident arose when Kachmar, who was asked for her opinion, advised SunGard to give a bonus to one of the female sales representatives of SunGard Recovery, one of the subsidiaries, over the opposition of the employee's male managers. She alleges that because of her advice she was labeled a "feminist" and a "campaigner for women's rights," terms meant to be derogatory. App. at 15.

In the course of her work, Kachmar observed that SunGard Recovery had "no real representation of females in upper management," App. at 15, and she advised Pedrick and Gross that this situation could render the company ineligible for certain federal contracts. Both declined to talk to the president of the subsidiary, Ken Adams, but suggested Kachmar could do so. Kachmar did, and alleges that Adams then had a "stormy interchange with Pedrick and Gross demanding to know why he had not received EEO advice from them earlier." Id. SunGard Recovery subsequently added women to its upper management.

The final incident occurred when SunGard Recovery sought to fire an African-American Senior Vice President, and Kachmar tried to advise the new president of SunGard Recovery, Michael Mulholland, regarding the EEO implications of the firing. She alleges she was told that the company "should just pay [the individual] off." Id. at 16.

On January 15, 1993, Kachmar met with Gross to receive her annual review. He told her that she was not on "the management track" because of her "conduct." Id. at 17. Gross did not criticize her competence as Senior Counsel, but instead engaged in a diatribe against her for "campaigning on women's issues," referring to her complaints about her own and Armstrong's levels of compensation, and for "feminist campaigning" in her handling of the matter of the female employee of SunGard Recovery. Id. at 17-18. Following this meeting, Gross began to ignore Kachmar and interacted with her as little as possible except in formal settings, despite Kachmar's attempts to "clear the air." Id. at 18.

Kachmar continued in her position as Senior Counsel after her meeting with Gross, though their relationship was strained. In mid-1993, Kachmar further advised the president of the Recovery Group that the Vice President, William Baumont, should be counseled regarding his treatment of women because there had been complaints about his conduct, but her advice was received with hostility.

In October, 1993, Kachmar sought advice from Pedrick concerning her relationship with Gross, and Pedrick advised Kachmar to begin looking for a job elsewhere. Kachmar alleges that although she was still employed, Gross offered her job to a male attorney in November, 1993, who declined the offer. About two months later, on January 5, 1994, Kachmar was notified of her termination for alleged performance problems. She contends that the manner of her dismissal contravened company policy and procedure, which required written notice and an opportunity to cure the alleged deficiencies. Although Sarah Armstrong was promoted to the position of Senior Counsel, Kachmar contends that in fact she was replaced by a male attorney, Michael Zuckerman.

Following her termination, Kachmar sought employment with a Philadelphia law firm. Kachmar asserts that Armstrong intentionally sabotaged Kachmar's efforts to obtain employment by telling a member of the firm that Kachmar was planning to sue SunGard.

After exhausting her administrative remedies, Kachmar filed a complaint alleging that SunGard, Gross, and Pedrick (hereafter collectively referred to as SunGard) illegally terminated her in retaliation for her exercise of protected rights under Title VII, and that SunGard engaged in a pattern and practice of sex discrimination. She also included a Pennsylvania common law claim for tortious interference with prospective contractual relations. Defendants filed a motion to dismiss and/or for partial summary judgment. The district court granted the motion to dismiss the Title VII retaliation and state law tort counts and granted summary judgment to defendants on the remaining Title VII claim of sex discrimination. Our review is plenary.


A. Retaliatory Discharge

1. Causal Link

The pertinent provision of Title VII states that: "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. Section(s) 2000e-3(a) (1993). In her retaliation claim, Kachmar contends that she was discharged because she voiced her opposition to SunGard's unlawful employment practices regarding both herself and others.

In order to establish a prima facie case of discriminatory retaliation under Title VII, Kachmar must show 1) that she engaged in protected activity, 2) that the employer took adverse action against her, and 3) that a causal link exists between the protected activity and the employer's adverse action. Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 201 (3d Cir.), cert. denied, 115 S.Ct. 590 (1994); Jalil v. Avdel Corp., 873 F.2d. 701, 708 (3d Cir. 1989), cert. denied, 493 U.S. 1023, 110 S.Ct. 725 (1990).

The district court held that Kachmar's complaint adequately pled the first two elements of such a claim but that her complaint did not satisfy the third. The court held that, as a matter of law, Kachmar could not prove the requisite causation, noting that the termination of her ...

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