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Kim Wolpert v. Abbott Laboratories

September 12, 2011

KIM WOLPERT, PLAINTIFF,
v.
ABBOTT LABORATORIES, DEFENDANT.



The opinion of the court was delivered by: Simandle, District Judge:

OPINION

I. INTRODUCTION

This matter comes before the Court on Defendant Abbott Laboratories' motion for summary judgment. [Docket Item 67.] Plaintiff Kim Wolpert alleges that Defendant Abbott Laboratories discriminated against her on the basis of her sex and her pregnancy in violation of the New Jersey Law Against Discrimination ("NJLAD") N.J. Stat. Ann. § 10:5-12(a), and additionally violated her rights under the Federal Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. and the New Jersey Family Leave Act ("NJFLA"), N.J. Stat. Ann. § 34:11B-1 et seq. The undisputed facts of record demonstrate that Defendant Abbott selected Plaintiff for termination in a nation-wide reduction in force and notified her that her job had been eliminated while she was on maternity leave on September 19, 2007. As explained below, because the undisputed facts of record indicate that Defendant's decision to include Plaintiff in the 2007 reduction in force ("RIF") was unrelated to her sex, pregnancy or maternity leave, the Court will grant Defendant's motion for summary judgment against Plaintiff's NJLAD claim based on her September 2007 termination, and also against Plaintiff's FMLA and NJFLA claims. However, because Plaintiff has established a dispute of fact regarding whether Defendant's proffered non-discriminatory reason it did not hire her for a sales position in a different division was pretext, the Court will deny summary judgment against that claim.

In addition to Defendant's motion for summary judgment, Plaintiff's motion to strike portions of Defendant's reply brief is also before the Court. [Docket Item 101.] Because the Court decides Defendant's summary judgment without considering any of the material Plaintiff moves to strike, the Court will deny this motion as moot.

II. FACTS AND PROCEDURAL HISTORY

A. Events Prior to the September 2007 RIF

Unless otherwise identified, the following facts are supported in the record and are not disputed through admissible evidence by the parties. Where facts are disputed, the Court will identify the dispute.

Defendant Abbott Laboratories is a health care company that develops "new medicines, new technologies, and new ways to manage health." Munson Decl. ¶ 4. Abbott Vascular is a division of Abbott Laboratories that focuses on treatment of vascular disease. Id. ¶ 3. Plaintiff Kim Wolpert began her employment at Abbott Vascular in October of 2005 as a sales representative, known in Abbott Vascular as a territory manager ("TM"). Wolpert Dep. at 5:19-22; Munson Decl. ¶¶ 8-12. Plaintiff worked in the Endovascular group ("Endo"), which at the time was one of three sales organizations within Abbott Vascular, the other two being Vessel Closure and Cardiac Therapies. Munson Decl. ¶ 5. Plaintiff was initially hired to cover a territory in northern Pennsylvania. Wolpert Dep. at 12:18-19.

In April of 2006, Abbott acquired the vascular intervention business of its former competitor, Guidant Corp. Munson Decl. ¶ 13. As a result, several of Abbott's sales territories, including Plaintiff's, were being covered by multiple salespeople. Id. ¶ 14. Thus, after the Guidant Merger, Plaintiff was relocated to cover a neighboring territory in southern New Jersey, which included some of her old territory in eastern Pennsylvania. Wolpert Dep. at 15:17-21.

In early 2007, Plaintiff informed her supervisor Bryan Finley, a Regional Manager ("RM"), that she was pregnant. Finley Aff. ¶ 3. Finley mentioned this news in internal e-mails.

Id. ¶¶ 4-5. On more than one occasion thereafter, Finley's manager, Area Director Bruce Tamargo, asked Finley whether Finley thought Plaintiff would return to work after her anticipated maternity leave. Id. ¶ 8. A few months later, in the summer of 2007, Plaintiff began reporting to a new RM, Richard Collins. Wolpert Dep. at 23:7-20. In September of 2007, shortly after Plaintiff began her maternity leave, Collins received an email from Tamargo that suggested that the departure of two (unidentified) TMs in Collins's region had "put a strain" on the sales productivity of the region. Tamargo e-mail, September 13, 2007, McMoran Cert. Ex. 23.

On August 14, 2007, Plaintiff received an e-mail encouraging all TMs in the Endo sales force to apply for open TM positions in the Cardiac Therapies group, in anticipation of the launch of a new product. McMoran Cert. Ex. 14. One such open position, which was located in Philadelphia, would report to the Cardiac Therapies RM in the region, Charles Berry. Wolpert Dep. at 26:1-7. Plaintiff was one of three internal candidates to interview for the position; the other two applicants were men. Berry Dep. at 31:6-8. The Cardiac Therapies position had the same compensation structure and benefits as Plaintiff's existing position, and had the same "territory manager" title. Wolpert Dep. at 27:9-28:8.

Plaintiff applied for the position by submitting her resume to the HR employee who sent out the notice. McMoran Cert. Ex. 14. There is a dispute of fact over whether Plaintiff also telephoned Berry to indicate she was applying for the position. Berry testified that she had a short telephone conversation with him regarding the position, in which she indicated that she had little interest in the position and was only applying for it because her manager suggested she do so. Berry Dep. at 33:22-34:19. Plaintiff denied having any direct contact with Berry prior to her interview itself. Wolpert Dep. at 172:13-15. Regardless, Berry scheduled interviews with all three candidates who had applied, scheduling Plaintiff for a 30-minute telephone interview first, and then scheduling the other two male candidates for hour-long in-person interviews which were attended by both Berry and his superior, the Area Director of the group. Berry Dep. at 31:6-8.

Berry selected one of the male candidates for the position, who at least arguably had less sales experience at Abbott than Plaintiff did. Berry Dep. at 44:13-48:3. Berry testified that he made his selection on the basis of the perceived interest of the candidates in the position, and that he sensed from Plaintiff little interest both in the pre-interview conversation and in the telephone interview itself. Id. at 48:14-18. Berry testified that he believed Plaintiff had effectively taken herself out of consideration for the position because she expressed no interest in the job in his pre-screening conversation with her. Id. Plaintiff denies that she expressed no interest in the position, though she testified that she did not remember much about what was said in the interview. Wolpert Dep. at 34:6-35:7.

Berry denies that he was aware in August of 2007 that Plaintiff was pregnant. Berry Dep. at 39:12-14. Plaintiff testified that he was aware of her pregnancy because he had seen her in person in the later months of her pregnancy, when she was visibly pregnant. Wolpert Dep. at 172:16-22.

B. September 2007 RIF Criteria and Calculation Error

In early August 2007, executives of Abbott Vascular met in Chicago to discuss restructuring the business. Specifically, the executives decided that the Endo and Vessel Closure organizations should be merged into a single group. Munson Decl. ¶ 18. Consequently, they decided that the sales forces of Endo and Vessel Closure would become a single sales organization, necessitating the elimination of close to half of the sales employees in those organizations. Id. ¶ 21. Present at the meetings were Chuck Foltz, the president of Abbott Vascular, several vice presidents, Jean Munson, the Human Resources Director of Abbott Vascular, and Frank "Bud" Fahey, Director of Commercial Operations for Abbott Vascular. Id. ¶¶ 2, 19. Bud Fahey's team, which included Tory Noto and Tyler Rushton of the Strategic Planning Group, was tasked with identifying and proposing objective criteria that could be used to determine which of the existing sales employees to keep and which to terminate as part of the reduction in force. Noto Decl. ¶ 8.

Noto and Rushton developed and applied a set of criteria that they believed would select higher-performing and more experienced TMs to be "retained" in the RIF. Id. ¶ 9. The selection process called for first determining which and how many TMs would be considered eligible for any given territory. Id. ¶¶ 11-14. Secondly, the selection eliminated any eligible TMs who had a low annual performance evaluation. Id. ¶ 15. At the crucial third step in the process, Noto programmed an Excel spreadsheet to store and compare the "power scores" of the TMs in a given geographic region. Id. ¶ 16

The "power score" was a numerical representation of the TM's relative nation-wide "power rank" (based on various objective sales measures) in either the Endo or Vessel Closure division. An Endo TM with a nation-wide "power rank" of 23 out of 109 TMs, for example, would have a "power score" of 0.7889, while an Endo TM with a nation-wide rank of 75 out of 109 would have a lower "power score" of 0.3119. Id. ¶ 18. The "power score" enabled these Endo TMs to be compared on equal footing with Vessel Closure TMs, whose power ranks were weighted slightly differently because there was a different total number of Vessel Closure TMs.*fn1 Id. ¶ 16. Thus, a Vessel Closure TM with an apparently superior "power rank" of 22 out of 100 would have a lower "power score" than an Endo TM with a "power rank" of 23 out of 109 (0.7889 for the Endo TM compared with 0.78 for the Vessel Closure TM). The TM with the highest power score would be selected at the third step. Id. ¶ 25. A final fourth step of tenure would be used to break any ties remaining. Id. ¶ 24. Noto then recommended one TM for each territory based on these criteria. Id. ¶ 27.

Despite these efforts at identifying the highest performers in each new geographic territory for retention, however, Noto's spreadsheet contained a calculation error that affected the results for a number of candidates. Specifically, the formula Noto used to calculate the "power score" for the candidates incorrectly recorded the "power rank" of the various candidates, causing any zero in the power rank to drop out. Id. ¶¶ 43-44. Thus, a candidate with a power rank of 40 would be recorded incorrectly as having a power rank of 4, and therefore an incorrectly inflated power score. Id.

This computational error materially affected the recommendation process for eight TMs in the "final recommendations" Noto ultimately sent to Fahey on September 14, 2007. Noto Dep. 56:18-22. Plaintiff was among the eight TMs materially affected by this error. Specifically, her "power rank" as of the relevant date was 54 out of 109, and she was being compared against two other candidates who had "power ranks" of 100 and 107 out of 109. Id. at 50:1-21. Thus, absent the "zero suppression" error in Noto's spreadsheet, she would have been recommended for the territory on the basis of her superior power score. Instead, Noto calculated the power score of Brad F., the candidate with the power rank of 100, as being based on a power rank of 1, and therefore erroneously recommended him over Plaintiff for the territory. Id. at 57:24-58:2.

C. Plaintiff's Erroneous Termination

Plaintiff had contacted Munson on August 8, 2007 to request maternity leave, and began her leave in the beginning of September, 2007. McMoran Decl. Ex. 19; Wolpert Dep. at 54:21-24. She delivered her baby by caesarian section on September 6, 2007. Catenacci Decl. Ex. F; Munson Dep. at 58:16-17. There is no evidence in the record that Noto, Fahey, or any other individual associated with the creation of the RIF recommendation lists in August and September of 2007 were aware of Plaintiff's pregnancy or maternity leave. However, there is evidence that by August 8, Joan Munson, the HR Director, was aware of Plaintiff's pregnancy and leave. McMoran Decl. Ex. 19.

The RIF began on Sunday, September 16, 2007, with the termination of certain regional managers ("RMs"). Munson Decl. ¶ 37. Approximately ten of the twenty four RMs in the affected product lines were terminated. Id. Those fourteen RMs that were retained were summoned to a hotel/convention center in Atlanta, Georgia, on Tuesday, September 18, where they were informed of the RIF and organizational restructuring, and were trained on how to conduct the terminations of their TMs over the telephone the following day. Id. ¶ 38. Present for this training was Joan Munson as well as Kay Myrdal, who had recently been promoted into the position of Divisional Vice President of U.S. Endovascular Sales. Id. ¶ 39; Myrdal Dep. at 13:24-14:2. Plaintiff's Regional Manager, RM Richard Collins, was also present for the training on that day in Atlanta. Collins Dep. at 24:15-16. However, Bruce Tamargo, Collins's supervisor, was not present in Atlanta because he had recently been promoted to a different position. Munson Decl. ¶ 34. Thus, the position of Area Director for the Northeast region, the area encompassing Plaintiff's territory, had no acting Area Director at the time of the RIF. Id. ¶¶ 34-36.

Late in the afternoon of the 18th, Tory Noto was double-checking the accuracy of the recommendation spreadsheets he had constructed. Noto Decl. ¶ 42. While he was conducting this review, he discovered the "zero suppression" error, and realized that it might have affected the recommendations he had provided to Fahey. Noto Dep. at 56:18-22. He called Fahey and explained the error. Id. at 60:4-7. Fahey expressed his "extreme disappoinment" with Noto and requested that he determine the magnitude of the error, by figuring out how many recommendations were affected. Id. at 60:14-18. Noto corrected the spreadsheet and determined that a total of eight territories would have different recommendations under the correct calculation. Later that evening, he called Fahey back and reported how many territories were affected. Id. at 61:22-62:10. He then sent Fahey an e-mail containing this information, and listing the territories and individual TMs that had been affected. Id. at 63:13-14; Munson Decl. Ex. P.

The record contains conflicting testimony regarding what happened next. Fahey testified that he called Munson, the HR Director who was participating in the ongoing RIF, to report the error "somewhere around the 18th" but does not remember when, exactly, and does not remember whether he called Munson before or after the TMs were called on the 19th. Fahey Dep. at 45:7-17, 68:18-20. Munson testified that she was not made aware of the existence of the error until several months later, in December of 2007. Munson Dep. Vol. 2. at 84:13.

Fahey testified that in his initial conversation with Munson, which may or may not have happened as early as the evening of September 18, he discussed with her whether or not they should reverse course on the terminations to correct the errors, or whether they should "stay the course." Fahey Dep. at 46:12-19. However, he did not convey the identities of any of the affected individuals, including ...


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