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Mary Frintner v. Trueposition

August 27, 2012


The opinion of the court was delivered by: Pratter, J.


Plaintiff Mary Frintner raises a host of gender discrimination claims against her former employer, TruePosition. TruePosition moves for summary judgment on all claims. In addition, TruePosition has filed three motions in limine. The Court will address each of these motions in turn.


TruePosition hired Mary Frintner in January 2005, to work as a contractor in

TruePosition's documentation department.*fn2 At some point in the spring of 2005, Ms. Frintner and other female members of the department complained to the company's Human Resources authorities about alleged gender-based discriminatory treatment by the department manager, Ron Enfield. After six months as a contractor, Ms. Frintner was laid off for a period of five months, after which time TruePosition interviewed and hired her as a full-time Technical Writer in the documentation department. Upon being re-hired, Ms. Frintner again reported to Mr. Enfield.

In 2007, Steve Maiorano was hired as the Senior Manager of Training and Documentation, and Mr. Enfield was demoted to Senior Technical Writer. Accordingly, Ms. Frintner began reporting directly to Mr. Maiorano. Mr. Maiorano, whose background was primarily in training rather than in technical writing, assigned numerous managerial and leadership duties to Technical Writers on the staff, particularly to Ms. Frintner. Ms. Frintner successfully performed all of the extra "lead-like" duties, some of which had been assigned to her even before Mr. Maiorano took over the department. Although Ms. Frintner reportedly enjoyed the additional work and responsibility assigned to her and characterized her relationship with Mr. Maiorano as "excellent," she also felt that she should receive additional compensation for the work that she performed above and beyond her job description.

Based on the extra duties Ms. Frintner was performing, Mr. Maiorano recommended her for a 14% pay increase, as well as a promotion to Senior Documentation Lead, a title which did not exist at the time in the documentation department. Despite Mr. Maiorano's statements and the approval of Dr. Homaira Akbari, Executive Vice President for Operations at TruePosition, the promotion and raise never quite materialized.*fn3 Instead, Ms. Frintner was promoted to Senior Technical Writer, received only a 5% pay raise, and was, at least temporarily, relieved of some, but not all, of the extra management duties.

In January 2008, Alan Larrabee, formerly of OpenWave, was hired by TruePosition as the Vice President of Research and Development and assumed oversight responsibilities for the documentation department. Shortly after he joined the company, Mr. Larrabee began recruiting new employees. In so doing, he decided to replace was Mr. Maiorano, who Mr. Larrabee believed was not an effective leader of the Documentation and Training Department. The official reason for Mr. Maiorano's separation was a "reduction in force," rather than termination because of performance issues.

Around this time, Pat Leihy, Senior Director for New Products and Releases, recommended to Mr. Larrabee that Ms. Frintner be promoted to manager of the department. Rather than replacing Mr. Maiorano with another manager, however, Mr. Larrabee recruited Steve Straight, a colleague from OpenWave, to be Director of Technical Publications and Training in May 2008. Mr. Larrabee did not post the position internally and did not consider any other candidates for the job.

There is some dispute over whether or not Ms. Frintner was qualified for the director position. At her deposition, she testified that she did not think she would have been "a likely candidate" for the director position because she did not have experience relevant to the typical director position at TruePosition. However, she contends that because she had already performed extensive managerial duties and was seen as the de facto head of the department, she was qualified to lead the department.

After accepting the job, Mr. Straight did not relocate to Pennsylvania, where most of the employees reporting to him worked, but instead only worked eight days per month in Pennsylvania, spending the balance of his time in his home state of Massachusetts. Under Mr. Straight's leadership of the department, Ms. Frintner was once again assigned extensive leadership and managerial responsibilities. Other departmental employees, including Technical Writer Michael Sheldon, also took on additional responsibilities. However, no manager-level position was created in the department, despite the fact that directors at TruePosition normally had at least one manager directly reporting to them.

Shortly after Mr. Straight started working for TruePosition, the documentation department began a project to convert documentation into a content management system (CMS). As this project started, Mr. Straight brought in another former OpenWave employee, Jason Owen, to help lead the project. Mr. Owen, a technical writer at OpenWave who had worked for Mr. Straight on OpenWave's CMS implementation, had originally interviewed for the position of Senior Technical Writer at TruePosition--the same job title held by Ms. Frintner at the time. However, the position he actually accepted was the position of Information Architect. That title had never previously existed at TruePosition, it was not posted internally, and Mr. Owen was paid a higher salary for that job than he would have earned as a Senior Technical Writer.

Again, there is some dispute as to whether Ms. Frintner was qualified for the position of Information Architect. TruePosition contends that the job required technical knowledge and training which Ms. Frintner did not possess (while Mr. Owen did), and Ms. Frintner counters that she met all of the "Major Responsibilities" and "Required Knowledge, Skills and Experience" described in the Information Architect job description by virtue of her work experience. She also points out that about two weeks before Mr. Owen assumed the job, she had read a book about CMS and, based on the description of information architects in that book, told Mr. Straight that she was interested in such a position.

In any case, both Ms. Frintner and Mr. Owen were intimately involved in the CMS project as "co-leads" with equal responsibility for the project. Ms. Frintner handled the "business" side of the project, and Mr. Owen handled the "technical" side of the project. While Mr. Owen spent about 70% of his time on this one project, Ms. Frintner testified that she only spent about 30%-40% of her time on CMS. Ms. Frintner testified to having a good working relationship with Mr. Owen, despite a "slight" disagreement on which vendor should be selected for the CMS project.*fn4 Mr. Larrabee, on the other hand, testified that the two did not get along and that Ms. Frintner was causing disruption in the group.

Throughout this time, Mr. Straight and his management abilities were criticized by all of the employees in the documentation department because of lack of accessibility, indecisiveness, lack of organization, lack of communication skills, and other alleged deficiencies; and some employees even took their concerns to the Human Resources department. Ms. Frintner was one of these employees, and she did so on her own, in person and by email, and accompanied by others in the department. Technical Writers Mary Laura Walsh, Hillary Donaghy, and Mike Sheldon also complained to Human Resources about Mr. Straight. According to Mr. Sheldon, Mr. Picciocchi, Director of Human Resources, at one time told him that Mr. Straight had been placed on a performance improvement plan because of his deficiencies.

In early 2009, Mr. Straight budgeted a promotion for Ms. Frintner to Principal Technical Writer, and for Derek Fess, a Technical Writer, to Senior Technical Writer. Although the classification of "principal" had long existed at TruePosition,*fn5 the position of Principal Technical Writer had never before existed.*fn6 Mr. Straight told Ms. Frintner on multiple occasions in 2008 that she deserved and needed a promotion and that he supported a promotion for her. At her 2008 performance review, which took place in February 2009, Ms. Frintner learned that she would not be receiving this promotion, despite a performance review for 2008 in which she was rated as "exceed[ing] job requirements" in nearly every category and received the highest rating of anyone in the department, as well as the highest bonus of any member of her group. Mr. Straight informed Ms. Frintner that Mr. Larrabee had decided not to promote anyone in Research and Development that year.*fn7 In response, she told Mr. Straight, "I'm delighted to hear I still don't have a penis."

According to TruePosition, in mid-2009, its parent company ordered a 10% budget reduction, including reductions in force. However, the record citations provided by TruePosition for this motion support only that over the years, budget-related reductions in force sometimes occurred, not that there was a specific budget directive in 2009. There is also a dispute as to whether a budget-related reduction in force was necessary in the Research and Development Department at TruePosition. Ms. Frintner points to a 2009 email from Mr. Larrabee discussing "excess money available," and to a budget document showing that in 2009, the documentation and training groups spent about $140,000 less than was budgeted for those groups for the year, with the bulk of that underspending specifically in the documentation group.

This "reduction in force" was the specific reason given for Ms. Frintner's eventual termination from TruePosition in 2009. However, other explanations were offered by different employees involved in her termination. Despite the glowing performance review just months earlier, in which Mr. Straight wrote that Ms. Frintner had "done more than anyone to insure the success of the Tech Pubs group over the past year" and that he "need[ed Ms. Frintner] to continue in [her leadership] role" in the department, Mr. Straight testified at his deposition that by mid-2009 she was creating friction in the group.*fn8 Mr. Larrabee suggested that Ms. Frintner be let go as part of a reduction in force, which Mr. Straight testified he viewed as a way to get rid of a problem employee. Mr. Larrabee also described Ms. Frintner as having excess skills for her role.

As the discussions about Ms. Frintner's coming separation from the company progressed, Mr. Straight sought to have her transferred to another part of the company, an idea to which Mr. Larrabee objected. On August 3, 2009, Mr. Picciocchi and Mr. Straight met with Ms. Frintner and informed her that she was one of many employees being laid off that day due to budget reductions. She was offered a severance agreement and was told that she was eligible for re-hire. However, no one else at TruePosition was laid off that day. In fact, two other male employees in the Research and Development Department*fn9 who had been slated for a layoff on the same day retained their jobs for at least several more months. The same month that Ms. Frintner was terminated, Derek Fess was promoted from Technical Writer to Senior Technical Writer, which was the title Ms. Frintner held before she was terminated.*fn10

On October 1, 2009, Ms. Frintner filed an EEOC charge, complaining that because of her gender, she was denied equal pay and promotions and was terminated by TruePosition. The charge was dual-filed with the PHRC. After receiving right-to-sue letters, Ms. Frintner filed this lawsuit on May 27, 2011, claiming that TruePosition violated Title VII, the PHRA, and the Equal Pay Act. After discovery, TruePosition filed the pending motion for summary judgment, as well as three motions in limine to exclude certain evidence at trial. For the reasons set forth ...

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