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McCormick v. Maquet Cardiovascular U.S. Sales, LLC

United States District Court, D. New Jersey

August 3, 2018

SCOTT LANE McCORMICK, Plaintiff,
v.
MAQUET CARDIOVASCULAR U.S. SALES LLC, Defendant.

          OPINION

          KEVIN MCNULTY UNITED STATES DISTRICT JUDGE.

         Plaintiff 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.

         I.BACKGROUND[1]

         A. 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).

         The 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).

         B. McCormick's Responsiveness

         Maquet 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).

         Maquet 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).

         On 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).

         According 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).

         Merchant 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).

         Mueller, 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 ¶ 14).

         According 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 ¶ 14).

         In May, 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).

         According 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).

         Maquet 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).

         Maquet 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).

         On June 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).

         According 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).

         C. Cleveland Endoscopic Vessel Harvesting Course

         Maquet 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).

         On May 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).

         On June 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).

         On June 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.).

         After 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 ¶ 37).

         McCormick 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 ¶ 31).

         D. McCormick's Alleged Whistleblowing

         McCormick says that he contacted human resources about Flanigan's concerns with Woycke the next business day, Monday, June 16, 2014. (PRDSF ¶ 41).

         When 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 ¶¶ 43-44).

         McCormick 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).

         McCormick 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 ¶ 51).

         McCormick 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).

         McCormick 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).

         E. Sanders Interview with Woycke

         A. 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).

         Woycke 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).

         Woycke 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).

         Sanders 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).

         On July 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 ¶ 69).

         According 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 ...


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