1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-26-1997

Kachmar v. SunGard Data Sys Inc

Precedential or Non-Precedential:

Docket 96-1119

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Recommended Citation

"Kachmar v. SunGard Data Sys Inc" (1997). 1997 Decisions. Paper 71.

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 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

 No. 96-1119 

 

 LILLIAN KACHMAR, 

 Appellant

v. 

 SUNGARD DATA SYSTEMS, INC.; 

 LAWRENCE A. GROSS; DONNA J. PEDRICK 

 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. No. 95-cv-01282) 

 

Argued September 10, 1996 

Before: SLOVITER, Chief Judge, 

COWEN and LEWIS, Circuit Judges

 

(Filed March 26, 1997) 

 

Lek Domni (Argued) 

Philadelphia, PA l9l02 

 Attorney for Appellant 

Jami Wintz McKeon (Argued) 

Julie A. Uebler 

Of Counsel: 

 Morgan, Lewis & Bockius LLP 

Philadelphia, PA 19103 

 Attorneys for Appellees 

 

 OPINION OF THE COURT 

 
SLOVITER, Chief Judge. 

 Lillian Kachmar, who held the position of senior inhouse 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. 

§ 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. 

I. 

 FACTUAL AND PROCEDURAL BACKGROUND

 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 inhouse 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. 
II.

DISCUSSION

 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. § 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 employment occurred almost a 

year after the alleged protected activity took place. 

 Cases in which the required causal link has been at 

issue have often focused on the temporal proximity between the 

employee's protected activity and the adverse employment action, 

because this is an obvious method by which a plaintiff can 

proffer circumstantial evidence "sufficient to raise the 

inference that her protected activity was the likely reason for 

the adverse action." Zanders v. National R.R. Passenger Corp., 

898 F.2d 1127, 1135 (6th Cir. 1990); see Jalil, 873 F.2d at 708. 

 We have stated, however, that where there is a lack of temporal 

proximity, circumstantial evidence of a "pattern of antagonism" 

following the protected conduct can also give rise to the 

inference. Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 

892, 895 (3d Cir. 1993). These are not the exclusive ways to 

show causation, as the proffered evidence, looked at as a whole, 

may suffice to raise the inference. See, e.g., Waddell v. Small 

Tube Products, Inc., 799 F.2d 69, 73 (3d Cir. 1986). 

 The district court here analyzed the circumstantial 

evidence -- the gap in time between Kachmar's protected 

activities and her termination -- and determined it lacked the 

requisite proximity. It then proceeded to assess whether there 

was a pattern of antagonism that could allow a fact-finder to 

infer retaliatory animus. It found no such pattern. 
 In dismissing on the ground that the facts pled in 

Kachmar's complaint, even if proven, would be insufficient to 

show the required causal link, the district court took too narrow 

a view of the temporal proximity needed to satisfy the causal 

link element at this early stage of the case. It failed to 

accept the facts alleged in the complaint as true and construe 

those facts in the light most favorable to the plaintiff. See

Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 

1990). 

 The district court set the date of Kachmar's last 

protected activity in the Fall of 1992, when her discussions with 

SunGard management concerning the EEO implications of their 

personnel policies began. This failed to take into account the 

activities that Kachmar alleged occurred in mid-1993, when she 

further attempted to counsel SunGard of the EEO implications of 

management's treatment of women. If the mid-1993 date for the 

protected activity were used, there would be at most a gap of six 

months until Kachmar's official termination on January 5, 1994, 

rather than the gap of more than a year that the district court 

found. 

 Moreover, Kachmar claims she was advised by Pedrick to 

start looking for another job in October, 1993, only several 

months after her last protected activity. Her allegation that 

she was told her position had been offered to a male in November, 

1993, shortly after her meeting with Pedrick, would, if proven, 
show that Sungard had resolved to discharge her shortly after the 

latest activity. Indeed, Gross' statements to Kachmar as early 

as January 15, 1993 that she was being taken off the "management 

track," which she claims was a reaction to her protected 

activity, would further support her claim that it was her 

protected activity that placed her in disfavor, ultimately 

leading to her termination. 

 SunGard asserts that even a four month gap would be too 

long to allow an inference of causation. Our cases set no 

parameters but were decided in the context of the particular 

circumstances before us. See, e.g., Robinson, 982 F.2d at 894-95 

(expressing doubt that discharge could be causally linked to an 

employee's protected activity taken almost two years previously, 

absent the intervening pattern of antagonism); Jalil, 873 F.2d at 

708 (holding that interval of two days between employee's EEOC 

complaint and discharge of plaintiff sufficient to create an 

inference of causation). 

 It is important to emphasize that it is causation, not 

temporal proximity itself, that is an element of plaintiff's 

prima facie case, and temporal proximity merely provides an 

evidentiary basis from which an inference can be drawn. The 

element of causation, which necessarily involves an inquiry into 

the motives of an employer, is highly context-specific. When 

there may be valid reasons why the adverse employment action was 
not taken immediately, the absence of immediacy between the cause 

and effect does not disprove causation. 

 SunGard may have recognized that termination of Kachmar 

immediately after her January 15, 1993 meeting with Gross could 

have resulted in disruption of the small, three-attorney in-house 

counsel's office. After all, Kachmar was senior in-house 

counsel, not one of many interchangeable employees on an assembly 

line. We do not know whether she was involved in long-term 

negotiations or litigation that could have deterred Sungard from 

terminating her immediately. 

 By summarily concluding that there was too great a gap 

between Kachmar's protected acts and her termination, the 

district court failed to give Kachmar the opportunity to delve 

further into the facts by discovery. SunGard relied on appellate 

court cases holding that the time between the protected activity 

and the alleged retaliation was insufficient to raise the 

inference of causation. These cases arose following a greater 

opportunity for factual exploration than Kachmar was given here, 

where the court dismissed on the basis of the complaint alone. 

See, e.g., Hughes v. Derwinski, 967 F.2d 1168, 1174 (7th Cir. 

1992) (granting summary judgment because disciplinary letter 

issued four months after discrimination charge filed insufficient 

causal link to employer action); Cooper v. City of North 

Olmstead, 795 F.2d 1265, 1272 (6th Cir. 1986) (reversing after a 

bench trial and holding that discharge four months after filing 
of discrimination charge not causally linked to adverse 

employment action). 

 We need not consider the district court's secondary 

determination that there was no "pattern of antagonism" that 

would give rise to an inference of improper motive because 

Kachmar alleged enough direct evidence of a retaliatory animus on 

the part of Gross independent of her contention that their 

relationship became strained after their January 1993 meeting. 

 Kachmar alleges that at the January 15, 1993 review, 

Gross told her that she was not on the management track because 

of her complaints concerning her salary, her "campaigning on 

women's issues," and her handling of the female employee matter, 

which Gross cited as an additional example of feminist 

campaigning. These statements, if proven, would present direct 

evidence of Gross' retaliatory motives because they would permit 

a factfinder to infer that Kachmar was being taken off the 

management track because of her opposition to the manner in which 

SunGard was treating her and other women in the organization, and 

that her final dismissal was just a matter of time. Such 

statements could be interpreted to show that Gross placed 

"substantial negative reliance on an illegitimate criterion in 

reaching [his] decision" that Kachmar had little future with 

SunGard. Starceski v. Westinghouse Electric Corp., 54 F.3d 1089, 

1096 (3d Cir. 1995). In concentrating exclusively on the gap 

between Kachmar's protected activity and her firing, and the 
sufficiency of Kachmar's allegations of a pattern of antagonism, 

the district court failed to make the more generalized inquiry 

into whether Kachmar's protected activity was the likely reason 

for her termination. See Waddell, 799 F.2d at 73; cf. Andrews v. 

City of Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990) ("A play 

cannot be understood on the basis of some of its scenes but only 

on its entire performance, and similarly, a discrimination 

analysis must concentrate not on individual incidents, but on the 

overall scenario."). Whether Kachmar's protests regarding what 

she believed was the company's Title VII vulnerability were the 

likely cause of her termination is a difficult factual question. 

 Because the facts viewed in the light most favorable to Kachmar 

would support an inference of retaliation, her complaint states a 

colorable claim as to which she is entitled to further factual 

development. 

2. Claim by In-house Counsel

 SunGard argues that we should affirm the dismissal on 

the alternative basis that maintenance of Kachmar's retaliatory 

discharge action would improperly implicate communications 

subject to the attorney-client privilege and/or information 

relating to Kachmar's representation of Sungard. This court has 

not yet addressed the question of the viability of claims by inhouse counsel under Title VII. The district court alluded to the 

issue but did not dismiss on that ground. 
 Those few federal courts that have been presented with 

discrimination actions brought by in-house counsel have generally 

held that once an attorney's employment has terminated, s/he is 

not barred from bringing suit against the former employer for 

retaliatory discharge under Title VII. See, e.g., Jones v. 

Flagship Int'l., 793 F.2d 714, 726 (5th Cir. 1986), cert. denied, 

479 U.S. 1065, 107 S.Ct. 952 (1987); Verney v. Pennsylvania 

Turnpike Comm'n, 903 F.Supp. 826, 832 (M.D. Pa. 1995); Hoskins v. 

Droke, No. 94-C-5004, 1995 WL 318817, at *2 (N.D.Ill. 1995); 

Kocher v. Acer, No. C-93-20132RMW, 1993 WL 149077 at *3 - *4 

(N.D. Cal. 1993); Golightly-Howell v. Oil, Chemical & Atomic 

Workers Int'l Union, 806 F.Supp. 921, 925 (D. Colo. 1992); see

also Breckinridge v. Bristol-Myers Co., 624 F.Supp. 79, 83 (S.D. 

Ind. 1985) (charging discrimination under the ADEA). In the only 

federal appeals court case brought to our attention, the court 

stated, "In assuming her position as [in-house attorney, 

plaintiff] neither abandoned her right to be free from 

discriminatory practices nor excluded herself from the 

protections of [Title VII]." Jones, 793 F.2d at 726. 

 Title VII defines the "employee" who can bring suit in 

broad terms. See 42 U.S.C. § 2000e(f) (1994). Although that 

same section contains discrete exclusions, such as exempting 

persons elected to public office, their personal staff, and 

policy-making appointees, Congress did not exclude in-house 

attorneys. 
 SunGard concedes that in-house counsel are not per se

precluded from bringing a retaliatory discharge claim but argues 

that such suits are limited to cases in which confidential 

information is not implicated, which it contends is not the case 

here. It argues that by pursuing this claim Kachmar would be 

violating her ethical duties under the Pennsylvania Rules of 

Professional Conduct which impose a general duty of 

confidentiality with respect to "information relating to the 

representation of a client." See Pennsylvania Rules of 

Professional Conduct 1.6 (1996). SunGard notes that while Rule 

1.6(c)(3) allows the disclosure of confidential information "to 

establish a claim or defense on behalf of the lawyer in a 

controversy between the lawyer and the client," the comments to 

the Rule only offer two examples of such disputes: where there is 

a dispute over fees and where an attorney is defending against a 

claim implicating his conduct. See id. However, the Rules do 

not address affirmative claims for relief under a federal statute 

and thus we believe they are at best inconclusive on the issue 

SunGard raises. 

 SunGard seeks to bolster its contention that suits such 

as this by former in-house counsel run counter to the policies 

underlying the attorney-client privilege by citing a few state 

Supreme Court cases. It is true that some state cases take a 

restrictive view of the former in-house counsel's ability to file 

suit for retaliatory discharge. The most restrictive approach 
appears to have been taken in Balla v. Gambro, Inc., 584 N.E.2d 

104, 145 Ill.2d 492 (1991), which held that tort actions for 

wrongful discharge are unavailable to in-house counsel. See also

Herbster v. North American Co., 501 N.E. 2d 343 (Ill. App. Ct. 

1986). 

 Although the California Supreme Court, which considered 

the issue in General Dynamics Corp. v. Superior Court, 876 P.2d 

487, 490-91, 7 Cal.4th 1164, 1170-71 (1994) (en banc), has not 

adopted Illinois' blanket preclusion, SunGard relies on language 

in that opinion limiting the availability of suits by in-house 

counsel. In that case, a former in-house counsel filed a 

contract and tort action alleging that he was terminated in part 

because he had spearheaded an investigation into employee drug 

use at a company plant and had advised General Dynamics that its 

salary policy may have been in violation of the Fair Labor 

Standards Act. In a thoughtful opinion, the Court declined to 

dismiss the action at the pleadings stage, holding that "under 

circumscribed conditions, an in-house attorney may pursue a 

wrongful discharge claim for damages against his corporate 

employer even though a judgment ordering his reinstatement is not 

an available remedy." Id. at 495. The Court viewed the 

situation of in-house counsel as being more analogous to that of 

corporate executives who "owe their livelihoods, career goals and 

satisfaction to a single organizational employer," than to that 

of an attorney in the traditional attorney-client relationship, 
noting, "[u]nlike the law firm partner, who typically possesses a 

significant measure of economic independence and professional 

distance derived from a multiple client base, the economic fate 

of in-house attorneys is tied directly to a single employer, at 

whose sufferance they serve." Id. at 491. 

 The Court further observed that the professional 

relationship between the in-house attorney and the client did not 

fit the standard model of the "one-shot" undertaking - drafting a 

will or handling a piece of litigation - characteristic of the 

outside law firm. The corporate attorney-employee, the Court 

stated, "operating in a heavily regulated medium, often takes on 

a larger advisory and compliance role, anticipating potential 

legal problems, advising on possible solutions and generally 

assisting the corporation in achieving its business aims . . . ." 

 Id.1

 The language on which SunGard relies arose when the 

Court considered the possible limitations on the vitality of 

wrongful discharge claims when brought by former in-house 

 

1 For an account of the rise of the corporate legal department 

and its implications for the traditional "outside" law firm, see 

Abram Chayes & Antonia H. Chayes, Corporate Counsel and the Elite 

Law Firm, 37 Stan. L. Rev. 277 (1984). A number of scholarly 

articles have addressed the dynamics of lawyer-client relations 

in the organizational context. See, e.g., Sara A. Corello, Note, 

In-House Counsel's Right to Sue for Retaliatory Discharge, 92 

Colum. L. Rev. 389 (1992); Stephen E. Kalish, The Attorney's Role 

in the Private Organization, 59 Neb. L. Rev. 1 (1988); Kenneth J. 

Wilbur, Wrongful Discharge of Attorneys: A Cause of Action to 

Further Professional Responsibility, 92 Dick. L. Rev. 777 (1988); 

Daniel S. Reynolds, Wrongful Discharge of Employed Counsel, 1 

Geo. J. Legal Ethics 553 (1988). 
counsel. The Court, after holding that a limited remedy should 

be provided for former in-house counsel "confronted with the 

dilemma of choosing between adhering to professional ethical 

norms and surrendering to the employer's unethical demands," 

recognized the need to accommodate the "values that underlie the 

professional relationship - the fiduciary qualities of mutual 

trust and confidence." Id. at 502, 503. It was in that context 

that the Court stated that "in those instances where the 

attorney-employee's retaliatory discharge claim is incapable of 

complete resolution without breaching the attorney-client 

privilege, [a wrongful discharge] suit may not proceed," unless 

"some statute or ethical rule, such as the statutory exceptions 

to the attorney-client privilege . . . specifically permits the 

attorney to depart from the usual requirement of 

confidentiality." Id. at 490, 502. The Court noted that there 

are ample possibilities for preserving confidential 

communications, and underlined the fact that dismissal at the 

demurrer stage will seldom, if ever, be appropriate. See id. at 

489. 

 Other state courts have also permitted former in-house 

attorneys to bring wrongful discharge actions in tort, similarly 

analyzing the state public policies at issue. See, e.g., GTE 

Products Corp. v. Stewart, 653 N.E.2d 161, 166-68, 421 Mass. 22, 

28-29 (1995) (holding that in-house counsel may maintain wrongful 

discharge action where fired for refusing to violate ethical 
norms); Parker v. M & T Chemicals, Inc., 566 A.2d 215, 220, 236 

N.J.Super. 451, 459 (1989) (holding that employee-attorney may 

bring a damage suit for wrongful discharge under New Jersey's 

Conscientious Employee Protection Act, as public policy in favor 

of whistle-blowing on illegal conduct overrides attorney's duties 

of confidentiality). 

 The federal courts that have addressed the question 

have cited the important public policies underlying federal antidiscrimination legislation and the supremacy of federal laws in 

determining that federal anti-discrimination statutes take 

precedence over the at-will discharge principle. See, e.g., 

Jones, 793 F.2d at 726; Stinneford v. Spiegel Inc., 845 F.Supp. 

1243, 1245-46 (N.D. Ill. 1994); Rand v. CF Industries, Inc., 797 

F.Supp. 643, 645 (N.D. Ill. 1992). 

 The Jones court, although ultimately upholding the 

district court decision that the employer was justified in 

terminating the former attorney-manager of its EEO programs, 

emphasized that the provisions of Title VII must be construed 

broadly to extend to all employees and must be rigorously 

enforced: "since the enforcement of Title VII rights necessarily 

depends on the ability of individuals to present their grievances 

without the threat of retaliatory conduct by their employers, 

rigid enforcement of § 704(a) [the retaliatory discharge 

provision] is required." Jones, 793 F.2d at 726; see also

Stinneford, 845 F.Supp. at 1246 ("[T]he Supremacy clause demands 
that the federally mandated protections of the ADEA triumph over 

the state principle of at-will employment."). Such an approach 

is consistent with the policy to liberally construe the 

discrimination laws to best effectuate their remedial purpose. 

See County of Washington v. Gunther, 452 U.S. 161, 170 (1981). 

 We do not suggest that concerns about the disclosure of 

client confidences in suits by in-house counsel are unfounded, 

but these concerns alone would not warrant dismissing a 

plaintiff's case, especially where there are other means to 

prevent unwarranted disclosure of confidential information. In 

Breckinridge v. Bristol-Myers Co., 624 F.Supp. 79 (S.D. Ind. 

1985), where the defendants' legal officer claimed that the 

reasons offered by the company for his dismissal were a pretext 

for illegal age discrimination, the district court determined 

that while certain breaches of confidential material were 

problematic, "what [the plaintiff] Breckinridge did as the 

defendants' employee is assuredly relevant and pivotal in this 

case." Id. at 84. It did not disallow the plaintiff from 

providing testimony as to his duties and actions as general 

counsel, and, in fact, explicitly noted that information relating 

to the plaintiff's activities was relevant and discoverable. See

id. at 83. 

 It is premature at this stage of the litigation to 

determine the range of the evidence Kachmar will offer and 

whether or how it will implicate the attorney-client privilege. 
For example, without deciding the substance of the issue, it is 

difficult to see how statements made to Kachmar and other 

evidence offered in relation to her own employment and her own 

prospects in the company would implicate the attorney-client 

privilege. See, e.g., Breckenridge, 624 F. Supp. at 82. It is 

also questionable whether information that was generally 

observable by Kachmar as an employee of the company, such as her 

observations concerning the lack of women in a SunGard 

subsidiary, would implicate the privilege. Moreover, there may 

be a fine but relevant line to draw between the fact that Kachmar 

took positions on certain legal issues involving SunGard 

policies, and the substance of her legal opinions. See General 

Dynamics, 876 P.2d at 491 (discussing fact that plaintiff counsel 

advised the company that it was in possible violation of the Fair 

Labor Standards Act). 

 In Doe v. A Corp., 709 F.2d 1043, 1050 (5th Cir. 1983), 

the court observed that "[a] lawyer . . . does not forfeit his 

rights simply because to prove them he must utilize confidential 

information. Nor does the client gain the right to cheat the 

lawyer by imparting confidences to him." Id. at 1050; cf. Oregon 

State Bar Legal Ethics Comm., Formal Op. 1994-136 (stating that 

attorney may disclose confidences to establish a wrongful 

termination claim where attorney was terminated after refusing to 

make false representations on a patent application). 
 In balancing the needed protection of sensitive 

information with the in-house counsel's right to maintain the 

suit, the district court may use a number of equitable measures 

at its disposal "designed to permit the attorney plaintiff to 

attempt to make the necessary proof while protecting from 

disclosure client confidences subject to the privilege." General 

Dynamics, 876 P.2d at 504. Among those referred to in General 

Dynamics were "[t]he use of sealing and protective orders, 

limited admissibility of evidence, orders restricting the use of 

testimony in successive proceedings, and, where appropriate, in 

camera proceedings." Id. Admittedly, this may entail more 

attention by a judicial officer than in most other Title VII 

actions, but we are not prepared to say that the trial court, 

after assessing the sensitivity of the information offered at 

trial, would not be able to draft a procedure that permits 

vindicating Kachmar's rights while preserving the core values 

underlying the attorney-client relationship. It follows that we 

cannot affirm the dismissal of Kachmar's retaliatory discharge 

claim at this preliminary stage on the alternative grounds 

suggested by SunGard. 

 B. Sex Discrimination

 In contrast to the dismissal of Kachmar's retaliatory 

discharge claim, the district court entered summary judgment for 

SunGard on Kachmar's sex discrimination claim. In her complaint 

Kachmar alleged that SunGard engaged in a "pattern and practice 
of discrimination against females, including plaintiff, in rates 

of compensation, promotions, hiring, retention, and discharge." 

App. at 21. Kachmar sought damages and reinstatement with backpay. The parties have therefore treated this as a claim under 

Title VII that Kachmar was fired on account of her sex that is 

independent of her Title VII retaliatory discharge action. 

 To establish a prima facie case of employment 

discrimination, a plaintiff must show that she is a member of a 

protected class, that she was qualified for the position under 

dispute, that she was dismissed from that position, and that she 

was replaced by a member of a favored class. See McDonnell 

Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 

(1973); Lazarz v. Brush Wellman, Inc., 857 F.Supp. 417, 422 (E.D. 

Pa. 1994). The first three elements of Kachmar's prima facie 

case are undisputed. The district court granted SunGard's motion 

for summary judgment based on the fourth element, holding that 

there was no dispute as to the fact that Kachmar was replaced by 

a female employee. 

 The district court's treatment of this issue was brief. 

 The court stated: 

Defendants have submitted an affidavit of Defendant 

Gross which indicates that Kachmar was 

replaced by Armstrong, another female. In 

response, Kachmar has filed her own affidavit 

stating that she "trained Sarah Armstrong and 

worked with her, [she knew] her experience 

[was] not comparable to [her] own . . . [s]he 

may have been given my title, but she did not 

and could not replace me." See Affidavit of 

Kachmar, at ¶ 15. This is not sufficient to 
stave off summary judgment. Since I find 

that there is no genuine issue as to who 

replaced Kachmar, Defendants' Motion for 

Partial Summary Judgment will be granted. 

App. at 60-61. 

 Had the relevant issue been who was given Kachmar's 

title, Gross's affidavit would have been dispositive, as Kachmar 

did not dispute that Sarah Armstrong, another woman, was promoted 

into her position of Senior Counsel. She did, however, dispute 

that Armstrong "replace[d]" her. She contends that while 

Armstrong took over Kachmar's position in name, Michael 

Zuckerman, who was hired as Corporate Counsel to fill Armstrong's 

place, was Kachmar's actual replacement. She asserts that the 

timing of the hiring and the relative experience of Armstrong and 

Zuckerman strongly suggest that Armstrong became Senior Counsel 

in name only. 

 As this issue arises on summary judgment, Kachmar's 

failure to provide some evidence other than her own belief that 

Zuckerman rather than Armstrong replaced her would require 

affirmance under ordinary circumstances. For example, she has 

failed to overcome the memorandum SunGard produced dated March 

18, 1994, from Gross to 53 SunGard management employees that 

states: 

I am pleased to announce that Sara Armstrong has been 

promoted to the position of Senior Counsel. 

In just two years with the Company, Sara has 

quickly learned many of the intricacies of 

our myriad businesses and assumed major 

responsibilities in the areas of customer 

contracts and acquisitions. By way of 

reminder, Sara previously worked on the 
mergers and acquisitions team at the 

Philadelphia law firm of Dechert Price & 

Rhoads; she is a 1988 graduate of Columbia 

Law School and also holds a masters degree 

from the Kennedy School of Government and a 

bachelors degree from the University of 

Pennsylvania. 

I am also pleased to announce that Mike Zuckerman will 

be joining the Company as Corporate Counsel 

in mid-April. Before attending Harvard Law 

School, where he graduated cum laude in 1990, 

Mike worked for ten years in the computer 

industry, including positions as Manager of 

Product Development and Director of Technical 

Services for a provider of specialty turnkey 

systems. Since 1990, Mike has applied his 

unique blend of legal and computer skills at 

Dechert, Price & Rhoads, where he has handled 

a variety of computer law, intellectual 

property and general corporate assignments. 

Mike will be handling similar types of 

assignments for SunGard. 

App. at 34. As this memorandum appears to notify those who would 

be likely to refer matters to in-house counsel of the respective 

positions occupied by Armstrong and Zuckerman, it supports 

SunGard's position that Armstrong replaced Kachmar. Kachmar 

notes that SunGard "waited seven weeks . . . to announce 

Armstrong's promotion to Senior Counsel" and argues that she 

should be able to explore by discovery whether it is a "possible 

pretext." Appellant's brief at 39. 

 It appears from this limited record that Kachmar will 

have a difficult road to travel to support her allegation that 

Armstrong's promotion was simply a ruse. However, Kachmar was 

not given the opportunity to test her contention by discovery. 

Although she followed the procedure contained in Rule 56(f) by 
certifying her need to have the opportunity to complete discovery 

before the court made a dispositive ruling on SunGard's motion 

for summary judgment, see App. at 47, the district court entered 

judgment without giving her that opportunity. Nor did the 

district court explain why it was denying the request for 

discovery. Inasmuch as Kachmar has had no opportunity for 

discovery, we will vacate the order granting summary judgment to 

give her the chance to pursue this theory. 

 In remanding on this issue, we do not suggest that 

"replacement" for purposes of Title VII means that every detail 

of the duties which Kachmar performed need be compared to those 

performed by Armstrong and Zuckerman. It would be only natural 

that duties shift with new personnel, as they bring to the 

position varied skills and expertise that may differ from those 

of the prior occupant. Nor is salary necessarily determinative. 

 The relevant issue is whether the title of Senior Counsel given 

to Armstrong was merely a ruse to conceal replacing Kachmar with 

Zuckerman, a male. Because this is a narrow issue, the district 

court may limit discovery on this claim accordingly. 

 C. Individual Liability

 The district court dismissed Gross and Pedrick as 

defendants in both the retaliatory discharge and discrimination 

claims on the ground that individuals may not be held liable 

under Title VII. 
 In Sheridan v. E.I. DuPont de Nemours and Co., 100 

F.3d 1061 (3d Cir. 1996), this court in an en banc decision, 

joined the majority of other circuits in concluding "that 

Congress did not intend to hold individual employees liable under 

Title VII." Id. at 1077; see also Dici v. Commonwealth of 

Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996). We will therefore 

affirm the district court's order dismissing Kachmar's Title VII 

claims against Pedrick and Gross. 

 D. Tortious Interference with 

 Prospective Contractual Relations

 Kachmar appended to her Title VII claims a state law 

claim of tortious interference with prospective contractual 

relations. She alleges that after SunGard discharged her, 

Armstrong telephoned one of the partners of the law firm with 

which Kachmar was seeking employment "on the pretext of getting a 

message to [Kachmar] on an unrelated matter" and "[w]hile engaged 

in this conversation, and for no reason except to attempt to 

interfere with [Kachmar's] efforts to find new employment, 

Armstrong advised the partner that [Kachmar] had hired counsel 

and was going to sue SunGard." Complaint at ¶¶ 68, 69. As a 

result, discussions between the law firm and Kachmar were 

discontinued.2 

 

2 Kachmar argues for the first time in her reply brief that her 

claim that Armstrong’s telephone call constituted discriminatory 

retaliation was never dismissed by the district court. We need 

not decide whether the Supreme Court's recent holding that former 

employees may bring suits for discriminatory retaliation under 

Title VII, see Robinson v. Shell Oil Co., 117 S.Ct. 843 (1997); 

see also Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 200 (3d 
 To prevail on a claim of intentional interference with 

prospective contractual relations under Pennsylvania law, Kachmar 

must show the following: (1) a prospective contractual relation; 

(2) the purpose or intent to harm the plaintiff by preventing the 

relation from occurring; (3) the absence of privilege or 

justification on the part of the defendant; and (4) the 

occasioning of actual damage resulting from the defendant's 

conduct. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 208, 

412 A.2d 466, 471 (1979); Advent Systems Ltd. v. Unisys Corp., 

925 F.2d 670, 673 (3d Cir. 1991) (citing Silver v. Mendel, 894 

F.2d 598, 601-602 (3d Cir.), cert. denied, 496 U.S. 926 (1990)).

 The district court held that Kachmar stated sufficient 

 facts to meet the second and fourth prongs of the cause of 

action, but that the allegations of the complaint that Kachmar 

merely "sought" an attorney position with a prominent law firm in 

Philadelphia did not rise to the level of a "prospective 

contractual relation" as it was too indefinite. The district 

court also held that Kachmar could not prove an absence of 

privilege because Armstrong's statement was truthful, citing the 

Restatement (Second) of Torts § 772 (1979). It thus dismissed 

Kachmar's complaint for failure to state a claim upon which 

relief can be granted. 

(..continued) 

Cir.), cert. denied, 115 S.Ct. 590 (1994), covers these facts 

because Kachmar failed to raise this issue in her initial brief 

and it is therefore waived. See McLendon v. Continental Can Co., 

908 F.2d 1171, 1183 (3d Cir. 1990). 
 A "prospective contractual relation" is, by definition, 

not as susceptible of precise, exacting identification as is an 

existing contract. "[A]nything that is prospective in nature is 

necessarily uncertain." Glenn v. Point Park College, 441 Pa. 

474, 480, 272 A.2d 895, 898 (1971). We have previously held that 

the Pennsylvania Supreme Court requires that there be an 

objectively reasonable probability that a contract will come into 

existence, Schulman v. J.P. Morgan Inv. Management, Inc., 35 F.3d 

799, 808 (3d Cir. 1994), something more than a "mere hope," 

Thompson Coal, 412 A.2d at 471. 

 We assume that had Kachmar's discussions led to a more 

definite employment prospect with the law firm, she would have so 

alleged and thus we share some of the district court's skepticism 

about the application of this tort to these facts. However, once 

again our disposition is governed by the procedural stage at 

which the issue arises. Kachmar's allegation that she learned 

during her discussions with the firm of Armstrong's conduct in 

informing the firm that Kachmar "hired a lawyer and was filing a 

discrimination suit against defendants," App. at 44, may suggest 

that the interaction between Kachmar and the firm passed beyond 

the preliminary stage. Of course, there is a wide gap between 

preliminary discussions and the "reasonable likelihood or 

probability" stage required by Pennsylvania law. Had the matter 

proceeded beyond dismissal to summary judgment, Kachmar would 

have been required to produce evidence from sources available to 
her as to whether her contacts had reached that stage. Dismissal 

on the basis of the complaint precluded that inquiry. 

 The other ground on which the district court dismissed 

was Kachmar's failure to show the absence of justification or 

privilege for Armstrong's action. The court cited section 772 of 

the Restatement (Second) of Torts (1979) dealing with Advice as 

Proper or Improper Interference, which states: 

One who intentionally causes a third person not to 

perform a contract or not to enter into a 

prospective contractual relation with another 

does not interfere improperly with the 

other's contractual relation, by giving the 

third-person 

 (a) truthful information, or 

 (b) honest advice within the scope of a 

 request for advice. 

(emphasis added). 

 The Pennsylvania Supreme Court has never explicitly 

adopted section 772, and we have therefore analyzed the element 

of justification or privilege using the language employed by the 

Pennsylvania cases. Those cases have not stated that the truth 

of a statement in itself will defeat the tort claim but instead 

have focused on the broader issue of what constitutes a justified 

or privileged interference with prospective contractual 

relations. In Silver v. Mendel, 894 F.2d 598, 603 n.7 (3d Cir.), 

cert. denied, 496 U.S. 926 (1990), we relied on the Pennsylvania 

Supreme Court's discussion in Glenn v. Park Point College, 441 

Pa. at 479-80, 272 A.2d at 898, for the proposition that the 

absence of privilege or justification is "closely related to 
. . . intent" and "is not susceptible of precise definition." In 

Advent Systems, we stated that, 

When a defendant acts at least in part to protect some 

legitimate concern that conflicts with an 

interest of the plaintiff, a line must be 

drawn and the interests evaluated. The 

central inquiry in the evaluation is whether 

the interference is 'sanctioned' by 'the 

rules of the game' which society had adopted 

[defining] socially acceptable conduct which 

the law regards as privileged. 

925 F.2d at 673 (quoting Glenn, 272 A.2d at 899). 

 In a more recent case, the Pennsylvania Superior Court 

stated: "[T]he Pennsylvania Supreme Court has determined that the 

relevant inquiry must focus on the propriety of a defendant's 

conduct considering the factual scenario as a whole." Ruffing v. 

84 Lumber Co., 410 Pa.Super. 459, 467-68, 600 A.2d 545, 549 

(1991) (emphasis in original); see also University Graphics, Inc. 

v. Pro-Image Corp., 913 F.Supp. 338, 346 (M.D. Pa. 1996). 

Because the district court focused solely on Restatement section 

772 which gives dispositive effect to the truthfulness of the 

statement and failed to apply the broader Pennsylvania standard 

which looks to the propriety of the conduct, we will remand to 

the district court. 

 We do not suggest that the truthfulness of the 

statement is not a factor to be considered although we note that 

truthfulness is not referred to in either section 767 of 

Restatement (Second) of Torts, which provides a list of factors 

relevant to "proper" conduct, or in the Pennsylvania cases 
dealing with interference with prospective contractual relations. 

 The district court will have the opportunity to review in the 

first instance what may be the somewhat differing approaches to 

"proper" conduct in the Pennsylvania Superior Court. Compare

Yaindl v.Ingersoll-Rand Co., 281 Pa.Super. 560, 573-74, 580 n.11, 

422 A.2d 611, 618, 622 n.11 (1980) (employing the factors of 

section 767 and stating that the absence of privilege or 

justification is merely another way of stating that the 

defendant's conduct must be improper) with Vintage Homes, Inc. v. 

Levin, 382 Pa.Super. 146, 155, 554 A.2d 989, 994 (1989) 

(analyzing the tort only with reference to "absence of 

justification or privilege"), Gordon v. Lancaster Osteopathic 

Hosp. Ass'n, Inc., 340 Pa.Super. 253, 263, 489 A.2d 1364, 1370 

(1985), and Ruffing, 600 A.2d at 549 (analyzing tort with 

reference to both the factors set forth in section 767 and 

"absence of justification or privilege"). 

 Kachmar is entitled the opportunity to further develop 

her tortious inteference claim. Of course, to prosecute her 

claim against SunGard she has the burden of offering some 

evidence that Armstrong was acting within the scope of her 

employment when she contacted the law firm. See Yaindl, 422 A.2d 

at 625. We assume that whether Kachmar has any basis for 

asserting this claim against SunGard can be developed at the 

initial stages of discovery. We will therefore vacate the 

dismissal of this claim and remand for further proceedings. 
III. 

 CONCLUSION

 To summarize, the district court was premature in 

dismissing Kachmar's complaint in its entirety. First, we 

conclude that Kachmar has stated a prima facie case of 

retaliatory discharge under Title VII, and is not barred from 

pursuing her action by the attorney-client privilege and/or the 

ethical constraints of attorney-client confidentiality. Second, 

we hold that a genuine issue of material fact exists as to 

Kachmar's sex discrimination claim and summary judgment was 

therefore inappropriate. Third, we conclude that Kachmar has 

stated a claim for tortious interference with prospective 

contractual relations. Finally, we uphold the dismissals of the 

individual defendants Gross and Pedrick. Accordingly, we will 

affirm in part and vacate and remand the remainder of the order 

for further proceedings consistent with this opinion. 

___________________________ 

TO THE CLERK: 

 Please file the foregoing opinion. 

 ____________________________________ 

 Chief Judge