United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE.
Scott Lane McCormick sues his former employer, defendant
Maquet Cardiovascular U.S. Sales, LLC ("Maquet").
McCormick alleges that he reported potentially illegal
conduct, and that in retaliation Maquet asked him to resign.
McCormick sues under New Jersey's Conscientious Employee
Protection Act. Now before the court is defendant
Maquet's motion for summary judgment. For the reasons
stated below, that motion is denied.
Beginning of Employment The defendant, Maquet Cardiovascular
U.S. Sales, LLC, designs, develops, and sells business
solutions and infrastructure functions for hospitals. (DSF
¶ 1; PRSDF ¶ 1). Maquet sponsors conferences that
include courses in which healthcare providers learn
utilization strategies and new applications for Maquet's
products. (DSF ¶ 2; PRSDF ¶ 2).
plaintiff, Scott Lane McCormick, applied for a position with
Maquet around January 2014. (DSF ¶ 3; PRDSF ¶ 3).
He started on February 9, 2014 as a Regional Manager,
Cardiovascular (Level II), with responsibility for the Great
Lakes Territory. (DSF ¶ 4; PRDSF ¶ 4). McCormick
was employed at will and subject to a six-month probationary
period, in accordance with Maquet's standard policy for
new employees. (DSF ¶ 5; PRDSF ¶ 5). McCormick
managed a team of employees and reported to Therese Mueller,
then the Area Director for the Central Area; she was
responsible for evaluating his performance. (DSF ¶ 6;
PRDSF ¶ 6).
contends that Mueller began "having concerns with
[McCormick's] responsiveness and lack of engagement with
his team" within the first few weeks of his employment.
(DSF ¶ 7). McCormick disputes this and claims that
Maquet provides insufficient evidence that Mueller had
concerns in March 2014. (PRDSF ¶ 7).
states that, on March 21, 2014, Mueller discussed with
McCormick a report she received about his lack of engagement
during conference calls with his team. (DSF ¶ 8).
Mueller spoke with McCormick "about his level of
engagement with the team and making sure he was setting up
1:1 calls with his team and reviewing not only their needs,
expectations, but upcoming field rides." (ECF No. 77-2,
ex. L, MAQUET 000188).
March 31, 2014, McCormick replied to an email from Mueller
about his failure to incorporate sales into forecasting
information. (DSF ¶ 9; ECF No. 77-2, ex. M, MAQUET
000097). McCormick responded, "It is painfully evident
to me that I do not yet have a good handle on hardware
forecasting. I embarrassed myself last week. I commit to
figuring out where I need to be getting this information and
provide timely and accurate weekly updates." (ECF No.
77-2, ex. M, MAQUET 000102).
to Maquet, on April 16, 2014, Charles Merchant, Maquet's
Regional Vice President for Training and Development for the
Americas, learned that McCormick failed to respond to emails
about a training opportunity. (DSF ¶ 10). McCormick
asserts that the training invitation occurred in person and
claims that there is no evidence of an email invitation.
(PRDSF ¶ 10).
requested that all managers nominate members of their team to
attend an advanced training program. (DSF ¶ 12; PRDSF
¶ 10). McCormick did not respond for nearly a week, even
after Merchant followed up twice. (DSF ¶ 12; PRDSF
¶ 12). McCormick adds that he was trying to figure out
which people needed which training and therefore needed more
time to respond. (PRDSF ¶ 12). Merchant testified that
McCormick lacked responsiveness and that this was unusual for
new hires. (DSF ¶ 13). McCormick denies that he lacked
responsiveness. (PRDSF ¶ 13).
too, had concerns about McCormick's responsiveness. (DSF
¶ 14). She states that McCormick frequently did not
respond to emails within twenty-four hours, and would not
notify people that he was unavailable. (DSF ¶ 14).
According to Mueller, the twenty-four-hour response rule was
a "rule of thumb" and not a written policy. (PRDSF
to McCormick, Mueller regularly cancelled meetings and phone
calls, and also responded late to phone calls and emails.
(PRDSF ¶ 14) Merchant allegedly took a week to respond
to one request by McCormick. (PRDSF ¶ 14) Chris Woycke,
McCormick's subordinate, stated that McCormick usually
replied in twenty-four to forty-eight hours. (PRDSF ¶
Mueller emailed McCormick, asking, "Is everything OK? I
sent several emails and have not heard back from you."
(DSF ¶ 15; PRDSF ¶ 15). Seven hours later,
McCormick responded, stating that he could not explain how he
"missed the multiple emails yesterday." (DSF ¶
16; PRDSF ¶ 16). Around this time, another Maquet
employee emailed McCormick to ensure that he was receiving
his emails because he, too, had not received a response. (DSF
¶ 18; PRDSF ¶ 18).
to Maquet, Mueller spoke with McCormick in May about his lack
of engagement at training, tendency to leave the room while
on his phone, and lack of responsiveness. (DSF ¶ 20).
McCormick disputes that this conversation ever happened.
(PRDSF ¶ 20).
claims that McCormick failed to approve twelve expense
reports on time. (DSF ¶ 21). McCormick claims that they
were submitted in a timely manner. (PRDSF ¶ 21).
claims that McCormick failed to obtain credentials on
schedule; this allegedly prevented him from accessing
customer accounts. (DSF ¶ 22). McCormick states that he
actively worked on his credentials and training; he claims
the emphasis on the "so-called credentialing" in
June and July 2014 was part of the retaliation against him
for reporting allegedly illegal activity. (PRDSF ¶ 22).
24, 2014, McCormick received an email by a Maquet employee
that said his training certifications were
"non-compliant." (DSF ¶ 23; ECF No. 77-2 ex.
P-R). McCormick replied that he had been very busy and would
finish the trainings the following week on vacation. (ECF No,
77-2, ex. P). He submitted the certifications on July 8,
2014. (ECF No. 77-2, ex. Q).
to Maquet, several individuals spoke to McCormick about his
certifications. (DSF ¶ 14). McCormick alleges that he
was not told the training was "required" and that
there was not an emphasis on training until after he reported
allegedly illegal activity. (PRDSF ¶ 24).
Cleveland Endoscopic Vessel Harvesting Course
was scheduled to host an Endoscopic Vessel Harvesting Course
in Cleveland, Ohio (the "Cleveland Course"). (DSF
¶ 25; PRDSF ¶ 25). On May 28, 2014, Chris Woycke, a
Territory Manager who reported to McCormick, emailed Susan
Mondano, a Customer Education Specialist at Maquet. (DSF
¶ 26; PRDSF ¶ 26). Woycke wrote that he wanted to
bring a vein harvester and also the hospital's
Cardiovascular Operating Room Manager (the "CVOR
Manager") to the Cleveland Course, and he requested a
hotel room for the CVOR Manager. (DSF ¶ 26; PRDSF ¶
26). According to Maquet, Mondano asked Woycke for an email
showing that McCormick had approved the request. (DSF ¶
26; PRDSF ¶ 26). McCormick alleges that he approved the
hotel request for the vein harvester only. (PRDSF ¶ 26;
ECF No. 77-2, ex. T).
30, 2014, Mondano wrote to Woycke and explained that
observers were not approved to attend the program; Woycke
acknowledged this. (DSF ¶ 30; PRDSF ¶ 30).
According to Maquet, Maquet's policy did not permit
observers to attend the Cleveland Course. (DSF ¶ 31).
13, 2014, Tracy Flanigan, a Cardiovascular Account Manager on
McCormick's team, emailed McCormick to say that Woycke
had brought "a customer" to the Cleveland Course.
(DSF ¶ 31; PRDSF ¶ 31). Flanigan also
reported that she refused to book an additional hotel room
and that Woycke, in response, was disrespectful to her. (DSF
¶ 31; PRDSF ¶ 31). McCormick claims that this
reflected a misunderstanding; he did not know the
"customer" was the CVOR Manager until June 17,
2014. (PRDSF ¶ 32).
13, 2014, Flanigan called Merchant and reported her concerns.
(DSF ¶ 33; PRDSF ¶ 33). Flanigan then emailed
McCormick to request that he contact her; she mentioned that
Merchant might contact McCormick regarding Woycke's
actions. (DSF ¶ 34; PRDSF ¶ 34). Flanigan, emailing
McCormick on Friday (evidently June 13, 2014), requested that
they speak about the incident on Tuesday (evidently June 17,
2014). (ECF No. 77-2, ex. S, MAQUET 000058, 69). McCormick
replied to Flanigan's email later on June 13, 2014 and
agreed to discuss the matter on Tuesday. (Id.).
speaking with Flanigan, Merchant contacted Mondano. Mondano
confirmed that Woycke-and another Territory Manager, Gary
Cowoski-had been told that the CVOR Manager could not attend
the Cleveland Course. (DSF ¶ 35; PRDSF ¶ 35).
Merchant then called McCormick and left a message about this
matter. (DSF ¶ 36; PRDSF ¶ 36). Merchant also
contacted Chris Odom, Maquet's then-Vice President of
Sales, regarding Woycke's actions. (DSF ¶ 37; PRDSF
claims that the CVOR Manager's attendance may have
violated an anti-kickback statute. (PRDSF ¶ 31).
Merchant testified that the CVOR Manager's attendance at
the Cleveland Course did not raise any red flags with respect
to any anti-kickback statute. The CVOR Manager, said
Merchant, could have had any number of legitimate reasons to
attend; for example, she could have sought to expand her
utilization of the featured product or to see how a larger
institution utilizes the product. (DSF ¶ 39; PRDSF
McCormick's Alleged Whistleblowing
says that he contacted human resources about Flanigan's
concerns with Woycke the next business day, Monday, June 16,
2014. (PRDSF ¶ 41).
Flanigan and McCormick spoke, Flanigan stated that Woycke had
taken the CVOR Manager to the Cleveland Course contrary to
Mondano's direction. (DSF ¶¶ 42-43; PRDSF
¶¶ 42-43). McCormick called Cowoski to confirm that
the CVOR Manager had been provided with food, entertainment,
and lodging. (DSF ¶¶ 43-44; PRDSF ¶¶
then called Merchant on June 17, 2014. (DSF ¶ 45; PRDSF
¶ 45). Merchant testified that he was concerned that
McCormick had not returned his call for almost five days.
(DSF ¶ 45). McCormick states that he did not know about
the potentially illegal conduct for five days because
Flanigan requested, on Friday, that they speak on Tuesday to
accommodate her vacation schedule. (PRDSF ¶ 45).
Merchant told McCormick that he had started an investigation.
(DSF ¶ 47; PRDSF ¶ 47). McCormick claims he warned
Merchant that Woycke's actions may have constituted an
anti-kickback statute violation. (PRDSF ¶ 47).
testified that his understanding of the anti-kickback
statutes was that "food and beverages are to be provided
in very modest amount only in the context of a bona fide
educational setting for participants who in fact have a need
to receive that education." (DSF ¶ 50; PRDSF ¶
50). McCormick acknowledged that he had taken clients or
people from medical facilities out for dinner, where they
discussed clinical journals, surgical technics, product
preferences, and other such matters. (DSF ¶ 51; PRDSF
testified that he had never personally spoken to the CVOR
Manager. (DSF ¶ 54; PRDSF ¶ 54). According to
Maquet, McCormick claims no one told him that the CVOR
Manager was attending the Cleveland Course so that Woycke and
Cowoski could gain favor with her and make her more likely to
use Maquet's products. (DSF ¶ 54), According to
McCormick, Woycke and Cowoski told him they wanted to bring
the CVOR Manager because she is an important customer and she
had friends attending the conference. (PRDSF ¶ 54).
claims that Mueller thought at the time that Woycke should be
severely disciplined for violating Maquet's directive not
to bring the CVOR Manager. (DSF ¶ 56; PRDSF ¶ 56).
Sanders Interview with Woycke
George Sanders, then-Vice President of Human Resources for
the Americas, began an investigation on June 17, 2014 after
Merchant told him about Woycke's actions. (DSF ¶ 57;
PRDSF ¶ 57). On June 23, 2014, Sanders interviewed
Woycke. (DSF ¶ 58; PRDSF ¶ 58). Woycke claimed that
he brought the CVOR Manager because she was with the vein
harvester when he went to pick her up. (DSF ¶ 59; PRDSF
¶ 59). He claimed he was in a dilemma: if he did not let
the CVOR Manager go, she would be an unhappy customer; if did
he let her go, he would violate Maquet's approved list of
attendees. (DSF ¶ 59; PRDSF ¶ 59).
claimed that he did not call McCormick about the situation
because he needed an immediate answer, and McCormick
typically took twenty-four to forty-eight hours to respond to
phone calls. (DSF ¶ 60; PRDSF ¶ 60). Woycke
allegedly did not attempt to call McCormick on that day about
the situation. (PRDSF ¶ 60).
claims that he did not pay any of the CVOR Manager's
expenses, but admits that she ate the provided lunch. (DSF
¶¶ 61-64). According to McCormick, Woycke and
Cowoski paid for the CVOR Manager's meals, hotel, and
entertainment during the seminar. (PRDSF ¶¶ 61-64).
had a brief conversation with McCormick about the situation
with the CVOR Manager. (DSF ¶ 67; PRDSF ¶ 67). The
conversation was mostly about the potential impact on
Woycke's employment. (DSF ¶ 67; PRDSF ¶ 67).
McCormick did not raise any concerns about Maquet's
having paid for the CVOR Manager's meals, hotel, or
entertainment with respect to any anti-kickback statute or
otherwise. (DSF ¶ 67; PRDSF ¶ 67).
8, 2014, Sanders concluded his investigation into the
Cleveland Course incident and recommended that Woycke's
employment be terminated for "willful and intentional
violation of company directives and for failure to report the
attendance of a healthcare provider at a company-sponsored
workshop. (DSF ¶ 68; PRDSF ¶ 68). Woycke ultimately
resigned in lieu of termination. (DSF ¶ 68; PRDSF ¶
68). Cowoski received a disciplinary write-up for
"failing to adhere to Maquet's Communications and
Employee Standards Policy." (DSF ¶ 69; PRDSF ¶
to Maquet, Sanders also recommended that McCormick receive a
write-up for failing to report the policy violation, but no
action was taken at the time. (DSF ¶ 70). McCormick