UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARY KATE BREEDEN, : : Plaintiff, : : v. : Civil Action No. 08-0625 (JR) : NOVARTIS PHARMACEUTICALS : CORPORATION, : : Defendant. :

MEMORANDUM AND ORDER

Mary Kate Breeden sues her former employer Novartis

Pharmaceuticals Corporation under the Family and Medical Leave

Act (“FMLA”),

, et seq. Novartis moves for

summary judgment. For the reasons set forth below, the motion

will be granted in part and denied in part.

Facts

Breeden was a salesperson in Novartis’ transplant

business unit (“TBU”). Her job was to persuade hospital

transplant personnel to prescribe Novartis drugs. Pl. St. Facts

2. During the fall of 2004, Novartis developed a plan with the

assistance of an outside consulting firm to overhaul the

structure of the TBU. Pl. St. Facts 2-3. As a part of the

overhaul, the geographic territories assigned to sales personnel

like Breeden were realigned.

Around November 2004, Breeden

notified her colleagues and supervisors that she was pregnant and

that she intended to take leave in the spring of 2005. Depo. of

Mary Kate Breeden 94:7-18, 103:1–104:17, attached to Resp. at Ex. 1. Breeden’s pregnancy was noted on PowerPoint slides used by

the consultants for planning the realignment of sales

territories. Pl. St. Facts 29.

Breeden learned around the beginning of 2005 that her

sales territory would be changing. Mot. 9. While she gained

several new accounts with the realignment, she lost three

Baltimore-area accounts that she deemed especially valuable. Pl.

St. Facts 3. The net result for Breeden was a territory in which

the number of transplants performed per year was roughly half

that of her earlier territory. Resp. 5; see also Decl. of Mary

Kate Breeden ¶¶ 13-14, attached to Resp. at Ex. 2 (describing the

decreased number of transplants and diminished interest in

Novartis drugs at her new accounts).

When the realignment was announced on a conference

call, Breeden objected to the change to her territory. Pl. St.

Facts 14. Brian O’Callaghan, the general manager of the TBU,

said in response, “Well, you’re not coming back from maternity

leave anyway, right?” Resp. 4. After she stated that she did

intend to return, Tom Harper, Breeden’s supervisor, assured her

that she would be made “whole” and that the changes were not

permanent.

Harper also raised Breeden’s concerns to his

supervisors. Pl. St. Facts. 15.

Breeden began her FMLA leave in March 2005 and returned

to work in July 2005.

. Soon after her return, she was

- 2 - informed that the realignment of her territory was in fact

permanent, and that it would not be altered. Resp. 4. After the

realignment, however, her rank in sales success among her peers

and resulting incentive-based pay improved considerably compared

to their pre-2005 levels.1 Mot. 11.

In early 2008, Novartis did another reorganization of

the TBU.

. It combined Breeden’s sales territory with

another territory and decided to retain only one of the two sales

representatives who had been assigned to the former territories.

Because Breeden’s accounts produced fewer prescriptions than

those of her co-worker, Novartis terminated her employment on

January 10, 2008.

Analysis

Breeden argues that Novartis interfered with her FMLA

rights (“interference”) and retaliated against her for exercising

those rights (“retaliation”).

A. Interference

An eligible employee who takes FMLA leave is entitled,

upon return, to be restored to her former job or “to an

equivalent position with equivalent employment benefits, pay, and

other terms and conditions of employment.” 29 U.S.C.

1 The sales rank was calculated by Novartis based on individual targets it established for each of its salespeople. Mot. 10-11. The targets are adjusted for the size and business potential of the various territories.

- 3 - § 2614(a)(1)(B). Breeden contends that her realigned sales

territory was not equivalent to her former position in terms of

effort and skill required, responsibility, authority, and

status.2 See

(a) (listing these terms as ways

in which positions must be equivalent).

1. Effort/Skill/Responsibility

Breeden’s arguments regarding effort, skill, and

opportunity all center on the fact that the realignment

diminished the size and quality of her sales territory. The

premise of this argument appears to be that dealing with a more

challenging territory required less effort, skill, and

responsibility. The premise is unconvincing on its face -- more

effort and skill should be needed to wring more sales from a

smaller territory -- and in any case is supported neither by

facts of record nor by caselaw. Shifting focus in a sales

position from maintenance of old accounts to producing new

accounts is not sufficient to establish an FMLA violation. See

Yen v. Yang Ming (America) Corp.,

, at *7 (C.D.

Cal. Nov. 8, 2005).

Breeden’s argument finds no support in her assertion

that she actually expended less effort on the realigned

2 Novartis suggests Breeden’s entitlement claim must fail because she would have been reassigned even if she had not taken leave. The PowerPoint slides and O’Callaghan’s question to Breeden raise triable issues of fact that defeat this argument. At any rate, I hold for Novartis on other grounds.

- 4 - territories and had to look for side projects to fill her time.

Pl. St. Facts. 8; cf.

(f) (excluding

unmeasurable aspects of jobs from required equivalency). Her

attempts to show tangible differences in the effort, skill, and

responsibility required by the realigned territory also are no

more convincing: She states that she no longer needed to travel

great distances for the realigned account, as she had previously,

see Breeden Decl. ¶¶ 12-13, but no FMLA violation occurs when an

employee previously required to travel regularly is given an

office job following leave. See Smith v. E. Baton Rouge Parish

School Bd.,

(5th Cir. 2006). She suggests that

the bureaucracies of the Baltimore-area accounts were more

difficult to navigate than those of her prior accounts, see Resp.

11-12, but for this proposition she offers only her own ipse

dixit, without details. Breeden has shown only de minimis

differences between her new job and her old one. Her showing is

insufficient to support relief. See

(f).

2. Authority

When Breeden returned from FMLA leave, she no longer

had the authority to give discounts to customers, see Resp. 17-

18, and she could no longer seek the assistance of a Novartis

“customer relationship manager” on certain accounts. Authority

for giving discounts was taken from everyone in Breeden’s

position after the realignment, however, and she could receive

- 5 - assistance from a supervising “business account manager,” even if

she could not turn to a “customer relationship manager.” See

Mot. 4-5 (describing post-realignment structure of the TBU);

Reply 12-13; Simpson v. Office of Chief Judge of Circuit Court of

Will County,

(7th Cir. 2009) (“[A]n employee is

not entitled to return to her prior position if she would have

been demoted or terminated regardless of whether she took FMLA

leave”). Breeden obviously retained the sales tools she needed,

given her success in her sales ranking among her peers. Both

changes are de minimis. See

(f).

3. Status

Finally, Breeden asserts that she had lost status when

she returned from leave. “Status” is not defined by the FMLA or

by its regulations, and the term is not developed by caselaw.

Breeden specifically asserts that her position was diminished in

“prestige” when she lost the Baltimore-area hospitals, Resp. 14,

but, whatever “status” means, it is not prestige. In defining

the equivalence required by the FMLA, the Department of Labor

specifically excludes any “intangible[] or unmeasurable aspects

of the job.”

(f).

4. Alleged Admission

Finally, Breeden suggests that the statements that she

would be made “whole” constitute an admission that her realigned

portfolio was not equivalent to her prior position. See Resp.

- 6 - 15. Intent is not an element of an entitlement claim, however,

so an employer’s subjective views are irrelevant. See Strickland

v. Water Works & Sewer Bd.,

(11th Cir. 2001).

B. Retaliation

To establish a prima facie retaliation claim, Breeden

must bring forward evidence that “(1) she engaged in protected

behavior, (2) the employer took materially adverse action against

her, and (3) a causal relationship existed between the protected

activity and the subsequent adverse action.” Cole v. Powell,

(D.D.C. 2009). “A plaintiff's burden in

establishing a prima facie case is not intended to be an onerous

one.” Skrjanc v. Great Lakes Power Serv. Co.,

(6th Cir. 2001). It is undisputed that Breeden’s leave was

protected behavior.

Breeden claims that Novartis’ failure to make her

“whole” was an adverse action. See Resp. 23-24 (“It was not,

however, the initial realignment which serves as the adverse

action . . . . The adverse employment action [also] was not the

termination in January 2008, but the refusal by Novartis

supervisors to make good on their promises to make her

‘whole.’”). She asserts that “[w]hile the affect [sic] of the

adverse employment action did not fully manifest itself until

2008, . . . the damage was done in mid-2005, when Breeden

returned from her FMLA leave.” Id. at 24.

- 7 - An adverse action in the context of a retaliation claim

is one that “might have dissuaded a reasonable worker from making

or supporting a charge of discrimination.” Burlington N. & Santa

Fe Ry. Co. v. White,

(2006). Burlington was a

Title VII decision, but it has widely been accepted as applicable

to FMLA retaliation claims. See, e.g., McArdle v. Dell Prods,

L.P.,

(5th Cir. 2008). In the Title VII

context, courts have explicitly stated that "[t]he concept of

adverse action in the retaliation context is broader than in the

discrimination context." Franklin v. Potter,

(D.D.C. 2009) (internal quotation marks omitted). Similarly,

here, adverse action reaches more broadly than the equivalency

standard for entitlement claims, which is limited by the

categories prescribed by

(a). After

Burlington, the law in most circuits is that the question of what

constitutes an adverse action should generally reach the trier of

fact. See Crawford v. Carroll,

, 973 n.13 (11th Cir.

2008) (“Burlington also strongly suggests that it is for a jury

to decide whether anything more than the most petty and trivial

actions against an employee should be considered materially

adverse . . . .”); McArdle,

(same).

A jury may find that a reasonable employee could have

regarded Novartis’s failure to “make [Breeden] whole” to be an

adverse action. Breeden has produced evidence that her fellow

- 8 - salespeople valued the quality of their territories highly. See

Pl. St. Facts 17-18. Those employees might reasonably fear that

asserting their rights under the FMLA, as Breeden did, would

result in diminished sales territories, with attendant risks of

reduced opportunities for promotion and increased risk of

termination. While reasonableness is judged ex ante, Novartis’s

eventual decision to terminate Breeden’s employment provides some

ex post confirmation of the reasonableness of such fears.

Breeden also has established a prima facie case of

causation. “The general rule is that close temporal proximity

between an employee's protected activity and an employer's

adverse action is sufficient . . . to create genuine issue of

material fact as to causal connection.” Brungart v. BellSouth

Telecommms., Inc.,

, 799 (11th Cir. 2000). The

decision not to make Breeden “whole”3 occurred very close in time

to her FMLA leave. The PowerPoint slide mentioning Breeden’s

pregnancy and the O’Callaghan comments are relevant to causation.

Breeden’s proof is hardly overwhelming, but it is sufficient to

withstand summary judgment. See Bryson v. Regis Corp.,

(6th Cir. 2007) (three-month gap between leave and

adverse action, combined with some additional evidence,

sufficient evidence of causation to survive summary judgment).

3 If, indeed, such a decision was made, and if Breeden, notwithstanding her increased sales relative to her peers and increased income, was in fact not made “whole.”

- 9 - Novartis’s proffer of a legitimate business purpose for

its decision, see Reeves v. Sanderson Plumbing Prods., Inc.,

(2000), is that the Breeden was reassigned

territories as part of a general realignment that affected all

salespeople and always was known to be permanent. In response,

Breeden offers both direct and indirect proof of pretext. She

also asserts that O’Callaghan’s comments and the PowerPoint

slides as proof of a discriminatory motive.4 She also argues

that Novartis was inconsistent in its reassignments. Thus, while

Novartis states that it reassigned the Baltimore-area hospitals

to Roger Samartino based on his existing relationships with those

hospitals, see Resp. 26, Breeden points out that it did not

reassign the Duke University Medical Center and University of

North Carolina accounts to Samartino, despite him having similar

existing relationships there, leaving those accounts instead with

a childless salesperson. See

Novartis is correct to assert

that it is not courts’ role to review the business wisdom of

individual personnel moves “as super-personnel departments.”

Reply 4-5. Nonetheless, Breeden has brought forward evidence

that could establish an inference of discrimination. Given her

limited burden, this is sufficient to survive summary judgment.

4 Motive or intent, while irrelevant to a claim of entitlement, would be admissible to show pretext in the retaliation context.

- 10 - Conclusion

Breeden’s problem -- which may turn out to be

insurmountable -- is proof of damages. To succeed on any FMLA

claim, a plaintiff must show actual damages. See

(a); Roseboro v. Billington,

(D.D.C. 2009). A claim can succeed only when the “employee loses

compensation or benefits by reason of the violation, sustains

other monetary losses as a direct result of the violation, or

suffers some loss in employment status remediable through

appropriate equitable relief.” Reed v. Buckeye Fire Equip.,

(4th Cir. 2007) (internal quotation marks

omitted). Breeden has yet to articulate any compensable damages

under the statute. Because this issue was not a focus of

Novartis’s motion, I will not grant summary judgment on the

issue. At trial, Breeden will have to put on sufficient proof of

damages recoverable under the statute to withstand a Rule 50

motion at the close of her case-in-chief.

It is ORDERED that Novartis’s motion for summary

judgment [#29] is GRANTED IN PART. Breeden’s FMLA entitlement

claim is DISMISSED. The motion is DENIED in all other respects.

JAMES ROBERTSON United States District Judge

- 11 -