The opinion of the court was delivered by: Conti, District Judge
In this memorandum order, the court considers the motion for summary judgment (Doc. No. 204) filed by defendant Rapidigm, Inc. ("defendant" or "Rapidigm") with respect to all claims against defendant asserted by plaintiff Jacqueline B. Martinez ("Martinez" or "plaintiff"). Defendant, which is in the business of providing information technology consulting services (Answer, Doc. 4 ¶ 5), hired plaintiff, an attorney, as director of immigration services in October 1998 and terminated her employment effective August 1, 2001. (Joint Statement of Material Facts ("JSMF"), Doc. No. 223 ¶¶ 1, 45).
Plaintiff asserts three claims in her complaint: (1) count I, sex discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-2 et seq. ("Title VII"); (2) count II, sex discrimination and retaliation claims under the Pennsylvania Human Relations Act, 43 PA. CONS. STAT. ANN. §§ 951 et seq.("PHRA"); and (3) count III, wrongful discharge claim under state law. Defendant moves for summary judgment with respect to all those claims. The undisputed material facts and the disputed facts viewed in the light favorable to plaintiff do not provide a basis for a reasonable trier of fact to return a verdict in favor of plaintiff. The court will therefore grant summary judgment in favor of defendant as to all claims for the reasons stated below.
The factual background is derived from the undisputed evidence of record and the disputed evidence of record viewed in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.").
I. Plaintiff's Workplace Environment
At the time plaintiff was hired in October 1998, she received a copy of the employee handbook containing defendant's "Sexual and Other Unlawful Harassment" policy. (JSMF ¶ 30). On January 31, 2000, plaintiff was reprimanded for playing a practical joke on a male colleague. (Martinez Dep., October 8, 2003 at 266). Plaintiff had placed her colleague's picture on an internet dating site, and in the weeks following the posting, around the end of January 2000, plaintiff distributed to other employees emails with links to the website. (Id. at 260-65). After the colleague reported the incident to defendant's director of human resources, Colleen Sullivan ("Sullivan"), defendant's chief executive officer, Lew Wheeler ("Wheeler")reprimanded plaintiff not only for misusing the company's time and facilities, but also for disseminating an embarrassing and defamatory email. (Id. at 268).
On September 8, 2000, Sullivan reprimanded plaintiff about a sexual comment that plaintiff publicly made to a subordinate. Rapidigm used in-house recruiters to recruit information technology professionals, called "consultants" and many of whom are foreign nationals, for outside placement. (Pl.'s Compl. ¶¶ 5, 10, 11, Def.'s Answer ¶¶ 5, 10, 11). In this instance, plaintiff had suggested to her subordinate that the subordinate ought not to run to deliver papers to a recruiter, rather to let him retrieve them, lest the recruiter think that the next time, the subordinate would "come up there and do lap dances for him." (JSMF ¶ 29). Plaintiff, who had served as a designated equal employment opportunity contact, acknowledged making the comment and noted its inappropriateness. (JSMF ¶ 30).
On September 29, 2000, plaintiff complained to Sullivan about two off-color comments by another employee, Mark Faurie ("Faurie"), with respect to plaintiff's wearing a sleeveless shirt ("I see you are enforcing your 2nd amendment rights . . . the right to bare arms"), and to plaintiff and another woman employee who had declared that she was tired ("If I had known we would be hiring such good looking women, I would have kept the couch [in my office]."). Again, Sullivan investigated and Faurie was reprimanded, though apparently the comments offended no one, including plaintiff. (JSMF ¶¶ 32, 33).
Inappropriate comments of a sexual nature were somewhat commonplace at Rapidigm. (JSMF ¶ 141). Plaintiff testified that the comments "were sexually harassing, some yes, some no." (JSMF ¶ 141). For example, another employee complained to plaintiff about sexually derogatory language, foul language, and obscenities used by men in marketing, the marketing area of the office having been dubbed within Rapidigm as the "shark tank." (JSMF ¶ 135). Sullivan had heard of the "shark tank." When plaintiff, however, reported the "shark tank" problem, Wheeler's response implied that the complainer was ultra-sensitive. (JSMF ¶¶ 136, 137). During the remainder of plaintiff's employment with Rapidigm, she did not file any other reports of sexual harassment or inappropriate conduct of a sexual nature. (JSMF ¶ 143).
During her tenure at Rapidigm, plaintiff herself contributed to an atmosphere in which sexual comments and blunt language were, to an extent, commonplace. She used words like "bitch" to describe herself in emails, apparently in a favorable manner. (JSMF ¶ 63). The record is replete with email correspondence plaintiff sent both to female and male colleagues within the company, containing sexually explicit, obscene, and shocking cartoons, photographs, jokes, and narratives. (Exhibits 32, 33, 34 and 35 to Martinez Dep., October 8 and 9, 2003). Notably, some of this email correspondence was directed to the very individuals against whom plaintiff lodged sexual harassment complaints. (Ex. 33 to Martinez Dep., October 8 and 9, 2003).
II. Plaintiff's Gender Bias Allegations
Plaintiff believed that at Rapidigm she was not taken seriously as a professional because she was a woman. (JSMF ¶¶ 18, 116). Perceived cultural differences with some Indian colleagues apparently played a part. Wheeler told plaintiff, using broad-brush language, that India "didn't allow the women to assert themselves and to use their brain power." (JSMF ¶¶ 18). Although plaintiff, an attorney, was a director with responsibility for the immigration department, she was told by several recruiters that opposition to her (as opposed to John Tatalovich ("Tatalovich") who had previously handled plaintiff's work as an outside contractor) was due to her being a woman. (Id.) Recruiters told plaintiff that she would be in the position of giving them directions, they were used to doing whatever they wanted, and "it's even worse when a woman tells you." (Id.) After helping one of Rapidigm's foreign national consultants, Raj Chandra ( "Chandra"), obtain his citizenship so he could bring his wife to the United States from India, plaintiff expressed interest in meeting the consultant's wife. Chandra replied: "No. I'm not going to let you ever meet her, you're not the kind of woman that I want my wife to meet, you're going to put new thoughts into her head. I don't want my Indian wife to become Americanized. I want her to stay Indian." (Id.)
In addition to specific comments such as these, plaintiff notes that the manner in which defendant handled sexual harassment complaints from her, a woman, differed from the way in which sexual harassment complaints from men were treated within Rapidigm. For example, in September 2000, plaintiff formally complained to Sullivan about a comment made by Rapidigm's chief operating officer, Ravi Amble ("Amble"). When Amble said, in response to plaintiff's refusal to sign H1-B petitions, "Who do you think you are, the Queen?," Sullivan neither conducted an investigation nor discussed the complaint with plaintiff. Sullivan did not discuss that comment with Amble because Sullivan did not consider the statement to be sexist. (JSMF ¶ 124). In contrast, when Sullivan had learned that same month of plaintiff's "lap dance" comment, Sullivan talked with the accuser but did not discuss the matter directly with plaintiff. Sullivan followed-up with a critical email to plaintiff about the prohibited activity, but Sullivan testified later that she did not consider the warning email to plaintiff about the "lap dance" to be a serious action. (JSMF ¶ 124.) When investigating plaintiff's complaints about Faurie's comments at the end of September 2000, Sullivan spoke directly to Faurie, making no attempt to talk to plaintiff; the comments, however, had offended no one, including plaintiff. (JSMF ¶¶ 32, 33).
III. Plaintiff's Efforts to Ensure Compliance
Wheeler hired plaintiff to serve as Rapidigm's director of immigration services. Another woman, Debra Kurth ("Kurth"), was hired at about the same time to serve as general counsel for non-immigration legal matters. (JSMF ¶ 1). At the time defendant hired plaintiff, defendant had immigration-related legal compliance problems; at least as early as November 1998, plaintiff believed that defendant intended to come into compliance. (JSMF ¶ 2). Indeed, Wheeler testified that Rapidigm's immigration department, headed by plaintiff, could spend whatever was needed, and use outside counsel, to bring the company into compliance. (JSMF ¶ 3). By March 1999, plaintiff had been told that she was to do what was required to make sure defendant was in legal compliance. ( JSMF ¶ 4).
Rapidigm, in order to place its consultants, the foreign information technology professionals, submitted to the Immigration and Naturalization Service ("INS")*fn1 petitions on its consultants' behalf for non-immigrant visas ("H-1B"). For a foreign national to be eligible for an H-1B visa, the duties of the position must meet the "specialty occupation" requirements of sections 101(a)(15)(H)(i)(b) and 214(i)(1) of the Immigration and Nationality Act of 1952 ("INA"), as amended, 8 U.S.C. §§ 1101(a)(15)(H)(i)(b) and 1184(i)(1). Part of the process involved filing a Labor Condition Application ("L.C.A.") with the U. S. Department of Labor attesting to the conditions of employment, including the employer's name and the job location. Beginning about October 1999, plaintiff told the human resources department at Rapidigm that she wanted to bring much of the H-1B process in-house so that she could ensure that the process was legally compliant. ( JSMF ¶ 5).
At Wheeler's request, in December 1999, plaintiff wrote a formal memorandum reviewing for defendant the H-1 B program, the applicable laws, the status quo at that time, including a description of what was not then in compliance and outlining possible remedies. (JSMF ¶ 6). In her discussions with defendant, plaintiff insisted that she would not take over the H-1B program "unless [she had] 100% commitment and effort in moving into compliance." (JSMF ¶ 7). Plaintiff recommended that defendant hire experienced outside counsel, which defendant did. (JSMF ¶ 7). In March 2000, plaintiff assumed responsibility for all aspects of the H-1B program, at which time she did not believe she had an ethical duty to report any lapses to the government. (JSMF ¶ 8).
From March through August 2000, plaintiff communicated to recruiters and defendant's executives that the immigration cases were being processed speedily, timely, and by August 2000, in compliance with the law. She reaffirmed her commitment to keeping defendant "above board with respect to all compliance issues," and attributed her success to her "tremendous amount of effort and personal investment." (JSMF ¶¶ 9-11, 16).
One of several solutions plaintiff proposed to defendant was a "homebasing" program. (JSMF¶ 13). Though the L.C.A. required by the Department of Labor requires specificity regarding the employee's job location, in about 60 percent of cases, a candidate may not know that location until one week before the placement. (JSMF¶ 12). Under homebasing, prospective employees initially would be assigned to one of several central bases from which they could later move. (JSMF¶ 14). The L.C.A. could later be amended or refiled with the correct information. (JSMF¶ 15). Plaintiff was implementing this program but by August 2000, had not fully implemented it. (JSMF¶ 16).
Also in August 2000, defendant and plaintiff, who had been working seven days a week, agreed that someone with H-1B experience should be brought in to assist. (JSMF ¶17). Wheeler perceived that the consultants and recruiters had been unhappy with the responsiveness of the HB-1 section up to that point and felt they were being rudely treated. (JSMF ¶ 18). Defendant selected Tatalovich for the position based upon his perceived responsiveness and good relationships with consultants. (JSMF ¶ 18). Tatalovich was the same individual whose firm, Global Strategies, had previously handled the defendant's immigration work and who had opposed defendant's bringing the H-1B program in-house. (Martinez Dep. October 8 at 97-98). Plaintiff opposed Tatalovich's hire because she believed he was someone who had "created such crises for this company" and because she did not believe that he was attentive to regulations, maintaining compliance, and maintaining paperwork. (JSMF ¶ 18). Plaintiff believed that because of this opposition, and the later split between the HB-1 section and the Green Card section through which Rapidigm helped its alien consultants obtain employment-based permanent residency, she became a "persona non grata" with Wheeler, others in management at Rapidigm and the recruiters. (JSMF ¶ 63).
IV. Plaintiff's Withdrawal from Responsibility for the H-1B Program
Indirectly, plaintiff learned that defendant would not be implementing her proposed homebasing program. (JSMF ¶¶ 20, 21). In light of that understanding and because plaintiff felt that she could not rely upon what recruiters might tell her about consultant locations, among other reasons, plaintiff informed defendant on September 1, 2000, that she would not sign any more H-1B petitions. (JSMF ¶ 21). Without prior approval from defendant, plaintiff informed defendant's recruiters and human resources department, in an email, that she was separating herself and her staff from the H-1B program, and sent copies of the email to Wheeler, Amble, and Rapidigm's president, Paul Freudenberg ("Freudenberg"). (JSMF ¶ 22).
Kurth, the general counsel, did not understand why plaintiff withdrew, as it appeared to Kurth that all was proceeding well, with no greater likelihood of legal non-compliance. (JSMF ¶ 23). Wheeler and Freudenberg advised plaintiff that she need not sign anything with which she was uncomfortable, and Wheeler offered to sign the petitions himself. Amble, however, insisted that plaintiff sign petitions until Tatalovich began his employment. (JSMF ¶ 24). Amble told plaintiff that he viewed her refusal to sign the petitions as "insubordination" and asked "Who do you think you are . . . the Queen?" Amble told her that he would speak to Wheeler and that repercussions would follow. (JSMF ¶ 25).
V. Plaintiff's Warnings to Report Non-Compliance
Plaintiff told Amble on September 1, 2000, the date on which she ceased signing the petitions, that if she "found out or came to learn that there was some fraud and there were fraudulent petitions, that [she] would have a legal duty to report that." (JSMF ¶ 27). On that date, plaintiff had not looked at pending petitions to assess their accuracy, nor did she know the compliance status of the overall program. (JSMF ¶ 26). Plaintiff was not again asked to sign these petitions on defendant's behalf. (JSMF ¶ 28). Indeed, from then on, the HB-1 and Green Card sections operated separately; plaintiff instructed her Green Card staff not to communicate with the HB-1 staff, the staffs maintained separate work areas, files and supplies, and her staff refrained from obtaining information directly from the HB-1 files or staff. Her staff obtained information directly from the consultants. (JSMF ¶ 34). Plaintiff took pains to insulate herself from the H-1B process, even declining to answer related questions or to discuss related topics; her position was premised on her conviction that if she discovered that things were wrong, she would have a duty to report. (JSMF ¶ 35). Plaintiff testified that she might have sent an email to that effect in November 2000 to Kurth and Wheeler explaining that she "did not want to [participate in the H-1B program] because if [she] found out things were ongoing wrong, then [she] would have to report. . . ." (JSMF ¶ 36).
By February 2001, defendant concluded that the immigration department at Rapidigm was not effectively working and brought in Larry Lebowitz ("Lebowitz"), an attorney with the Cohen & Grigsby law firm, to perform an audit. (JSMF ¶¶ 37-38). Lebowitz's evaluation noted that if the "current barriers and obvious tension between [the H and Green Card] groups continue, the level/quality of service will drop and the company as a whole will suffer." (JSMF ¶ 39). In May 2001, defendant issued a Request for Proposal ("RFP") to Pittsburgh area immigration attorneys to determine whether defendant's immigration program should be outsourced, or, in the alternative, whether other means could be found which would result in a well-run immigration department. (JSMF ¶ 40). One Pittsburgh firm declined to bid and another submitted a plan which was too expensive. A third firm, Reed Smith, L.L.P. ("Reed Smith"), proposed that rather than outsourcing, defendant reorganize under Reed Smith's guidance, first, the Green Card section and then, the H-B1 section. (JSMF ¶¶ 41, 42). Reed Smith was retained in July 2001 to implement this reorganization proposal, which by its nature, would obviate the need for plaintiff's position as well as several other positions within Rapidigm. (JSMF ¶ ¶ 43, 44).
VI. Plaintiff's Discharge from Employment
Wheeler and others at Rapidigm testified that shortly after Reed Smith's retention, defendant decided to eliminate plaintiff's position and effective August 1, 2001, plaintiff was terminated. At the same time, on Reed Smith's recommendation, three other employees were also terminated either because Reed Smith assumed the work related to those positions or because the positions themselves were redundant under the new organizational plan. (JSMF ¶ 45, 46). Additionally, a number of other immigration department staff elected to leave, including Tatalovich, and their positions were not filled. (JSMF ¶¶ 46, 47, 48). Reed Smith made numerous ...