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Yu v. McGrath

United States District Court, D. New Jersey

March 27, 2014

YUE YU, Plaintiff,


PETER G. SHERIDAN, District Judge.

This matter comes before the Court on Defendants Bristol-Myers Squibb, Co. ("BMS") and Holly McGrath's (collectively, "Defendants") Motion for Summary Judgment pursuant to FED. R. CIV. P. 56 (ECF No. 27). Pro se Plaintiff Yue Yu ("Yu" or "Plaintiff"), a former marketing research consultant at BMS, alleges that Defendants subjected her to discrimination and retaliated against her in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. ("NJLAD"), and 42 U.S.C. § 1981. Plaintiff further alleges violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA") and the New Jersey Wage and Hour Laws and Regulations, N.J.S.A. 34:11-56a et seq. ("NJWHL"). The Court held oral argument in this matter on March 27, 2014. For the reasons set forth herein, Defendant's Motion for Summary Judgment is granted as to Plaintiff's federal law claims. The Court declines to exercise supplemental jurisdiction over Plaintiff's state law claims and, therefore, those claims are dismissed with prejudice for lack of jurisdiction.


A. Parties

Plaintiff Yue Yu is a resident of Kearny, New Jersey. (Am. Compl. ("Compl.") at ¶ 10). She served as an independent contractor for BMS from September 22, 2009 until the termination of her market research consulting assignment on March 24, 2010. Defendant Bristol-Myers Squibb ("BMS") is a global biopharmaceutical company headquartered in New York, New York which specializes in the discovery, development, and marketing of medical therapies. (Defs.' Statement of Material Facts in Supp. of Mot. for Summ. J. ("Defs.' Statement of Facts") at ¶ 1). It has manufacturing plants and research and development centers located throughout the world, including in Lawrenceville, New Jersey. ( Id. ). Defendant Holly McGrath served as Director of Global Oncology Marketing Research at BMS from November 2000 to December 2012. ( Id. at ¶ 2).

B. Factual Background[1]

In or about July 2009, Defendant Holly McGrath contacted the marketing research vendor GfK Healthcare, LP ("GfK") to request that GfK identify a marketing research consultant to manage certain marketing research projects for BMS's Global Marketing Team in its Lawrenceville, New Jersey office.[2] ( Id. at ¶ 6). Mr. Robert Delghiaccio served as one of the account managers at GfK who was responsible for all marketing research work performed by GfK on behalf of BMS. ( Id. at ¶ 5). Pursuant to Ms. McGrath's request, GfK contacted a technology recruiting and staffing agency by the name of Scientific Search to identify a candidate for the consulting assignment. ( Id. at ¶ 7). Scientific Search identified Plaintiff and contacted her directly via email in July 2009. ( Id. at ¶ 9; Pl.'s Statement of Material Facts in Opp. to Defs.' Mot. for Summ. J. ("Pl.'s Statement of Facts") at ¶ 1). Mr. P. James Jenkins, Vice President and Practice Lead, was the primary contact at Scientific Search with regard to the BMS assignment. (Defs.' Statement of Facts at ¶ 9). After speaking with Mr. Jenkins and learning more about the position, Plaintiff agreed to submit an application. According to the Plaintiff, Mr. Jenkins informed her that she would need to undergo a "screening process" with GfK before her resume could be submitted to BMS. (Pl.'s Statement of Facts at ¶ 3).

On July 27, 2009, Mr. Delghiaccio held a telephone screening with Plaintiff after which he informed Plaintiff of his intention to present her application to the Global Marketing Team at BMS. ( Id. ). After Mr. Delghiaccio presented Plaintiff's application to BMS, an interview was scheduled. On August 12, 2009, Plaintiff interviewed with several members of the Global Marketing Team, including Defendant McGrath, Mr. Daniel Stults and Mr. Joey Li. ( Id. at ¶ 6). Approximately one week later, Plaintiff received notice from Mr. Delghiaccio that Ms. McGrath had selected Plaintiff to provide the requested consulting services on behalf of GfK. ( Id. at ¶ 8; Defs.' Statement of Facts at ¶ 11).

BMS, in accordance with the terms of an existing marketing research agreement with GfK, contracted directly with GfK for Plaintiff's consulting services by executing a Statement of Work ("SOW"). (Defs.' Statement of Facts at ¶ 12). The SOW, which identified GfK as the "Supplier" of services and listed Plaintiff as GfK's "Key Personnel[, ]" was effective as of September 11, 2009, and extended only through "the earlier of (a) March 31, 2010 and (b) termination in accordance with the terms of the Agreement[.]" ( See Decl. of Amy Komoroski Wiwi, Esq. in Supp. of Defs.' Mot. for Summ. J. ("Wiwi Decl.") at ¶ 7, Ex. E at ¶ 1). The SOW provided a description of the services to be provided by GfK and stated that BMS would "provide office space, telephone, building and hardware and software systems access only as necessary for the proper performance of services." ( Id. at ¶ 7, Ex. E at ¶ 5). Pursuant to the terms of the SOW, BMS agreed to pay for services actually performed at a rate of $190 per hour and, in the event BMS requested services requiring more than forty hours in a given week, BMS agreed to pay $205 per hour to GfK. ( Id. at ¶ 7, Ex. E at ¶ 10). BMS also agreed to pay GfK an additional fee if it decided to hire Plaintiff after expiration of the SOW. ( Id. at ¶ 7, Ex. E at ¶ 11).

In addition to its contract with BMS, GfK also entered into separate contracts with Scientific Search and the Plaintiff individually. GfK's contract with Scientific Search indicated that Scientific Search would provide consulting services to GfK "[i]n the form of an on-site consultant - Yue Yu", which were anticipated to be performed "5 days/week (approximately 40 hours per week)" at the rate of $139 per hour. ( Id. at ¶ 11, Ex. I at 1-2). The contract described the services to be rendered as follows: "Market Research Consultant to provide full service management and hands-on market research support to Bristol Myers Squibb (BMS) on behalf of GfK Healthcare. Market Research Consultant to report to Holly McGrath, Market Research Director, BMS." ( Id. ). The term of the agreement was September 21, 2009 through March 31, 2010, "with the potential of extension through the end of 2010" and a proviso that either party could cancel the contract before March 31, 2010 on thirty days' notice. ( Id. ). The agreement also provided that it would "be considered for renewal at the end of the contract period, unless cancelled because the quality of the product and/or timeliness of delivery fail to meet GfK Healthcare or client needs." ( Id. ). The contract between GfK and Plaintiff, which was entitled "Consulting Agreement through Scientific American", reiterated the same terms and conditions as the GfK-Scientific Search agreement and provided that GfK engaged Plaintiff through Scientific Search to provide consulting services. ( Id. at ¶ 12, Ex. J at 1).

Plaintiff also entered into a separate agreement with Scientific Search around this time. Scientific Search did not contract with the Plaintiff directly, but instead contracted with a company called Great & Guangda Enterprise, Inc. ("G&G") of which Plaintiff was President. (Defs.' Statement of Facts at ¶ 14).[3] The agreement indicated that G&G would be paid at the rate of $90 per hour and that G&G was required to obtain Scientific Search's approval before working more than forty hours in a given week. (Wiwi Decl. at ¶ 13, Ex. K at 3). The agreement also required G&G to provide invoices to Scientific Search and stated that payment was not due to G&G until payment was received by Scientific Search. ( Id. ).

Plaintiff describes the interaction between all of these contracts as follows: "BMS paid $190 per hour to GfK for Plaintiff's work at BMS[.]...GfK paid $139 per hour to Scientific Search, ... [and] Scientific Search paid $90 per hour to [G&G]." (Pl.'s Statement of Facts at ¶ 17). According to the Defendant, during the period of the BMS assignment, Plaintiff "reported her hours to Scientific Search on a monthly basis, and Scientific Search made payment to G&G directly, promptly after its receipt of an invoice from G&G." (Defs.' Statement of Facts at ¶ 41). Plaintiff also submitted her timesheets to Ms. McGrath for approval. (Pl.'s Resp. at ¶ 41).

While Plaintiff was originally scheduled to begin working at BMS on September 21, 2009, her start date was postponed one day until September 22, 2009 due to the fact that Ms. McGrath was out of the office on that day. (Pl.'s Statement of Facts at ¶ 39). Upon her arrival at BMS, pursuant to the terms of the SOW between BMS and GfK, Plaintiff was provided with office space, a telephone line, a computer, access to BMS's software systems, and a security badge giving her access to BMS's facilities in Lawrenceville and Plainsboro. ( Id. at ¶¶ 40-42). During the term of her assignment, Plaintiff served as the project lead on various BMS marketing research projects and was given primary responsibility over the development of marketing research plans, selecting an appropriate vendor for such projects, and generating final reports. (Defs.' Statement of Facts at ¶ 45). She also attended periodic meetings with BMS's Global Marketing Team and received training in BMS's budget management system. ( Id. at ¶ 45). Defendant McGrath served as Plaintiff's primary contact and manager at BMS and provided her with guidance and instruction on the market research projects to which she was assigned. (Pl.'s Resp. at ¶ 41). Ms. McGrath and Plaintiff met regularly during weekly one-on-one meetings and also interacted on an ad hoc basis if Plaintiff had questions regarding her assignments. (Defs.' Statement of Facts at ¶ 43).

Three significant projects to which Plaintiff was assigned included: (1) the EVRI Preliminary Positioning Development Project ("EVRI Project"); (2) the XL 184 Frame of Reference Project ("XL 184 Project"); and (3) primary and secondary marketing research on the use of particular drugs in breast cancer patients ("Breast Cancer Project"). ( Id. at ¶ 47).

Plaintiff worked primarily with Dr. Dan Guo, Oncology Global Commercialization Director, in connection with the EVRI Project. The EVRI Project was a collaboration between several divisions within BMS including Market Research, Marketing, Research and Development, Clinical Trial and Medical Communications. (Pl.'s Resp. at ¶ 49). As lead of market research for the EVRI Project, Plaintiff was responsible for developing marketing research plans and generating reports based on her research. (Defs.' Statement of Facts at ¶ 49). According to the Plaintiff, GfK was "responsible for drafting [a] discussion guide, recruiting research subjects, fielding interviews..., paying honorarium[s] to subjects, drafting [a] topline report and providing a written report." (Pl.'s Resp. at ¶ 49). Her responsibilities relating to the EVRI Project entailed "transforming... GfK's report into a presentation, then[] presenting to the broader team." ( Id. ).

According to the Defendants, Plaintiff and some members of the EVRI Project had disagreements about the EVRI marketing research plans. (Defs.' Statement of Facts at ¶50). Plaintiff acknowledges that "[t]here were disagreements, confusion[], [and] concerns about the EVRI Project[, ]" however, she states that "there was never [a] disagreement about the market research plan." (Pl.'s Resp. at ¶ 50). As a result of these disagreements, Dr. Guo, in November or December 2009, reported to Ms. McGrath that "he had lost confidence in Plaintiff's ability to deliver on the project to the satisfaction of the EVRI team." (Defs.' Statement of Facts at ¶ 51). He also asked if he could bypass Plaintiff and work directly with the vendor for the purpose of effective and efficient communication. ( Id. at ¶ 53). Ms. McGrath shared this information with Mr. Delghiaccio, who, in turn, discussed Dr. Guo's request with Plaintiff. ( Id. ...

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