Rutland-Simpson v. Eli Lilly & Co.
Rutland-Simpson v. Eli Lilly & Co.
Opinion of the Court
OPINION AND ORDER
Pending before the Court is Eli Lilly and Company’s (“Defendant”) motion for summary judgment and supporting memorandum.
1. Background
Jiea M. Rutland-Simpson (“Plaintiff’) alleges in her first amended complaint that while she was employed by Defendant, she was discriminated against because she was a Black, African-American and because she resisted that discrimination.
Defendant moved for summary judgment on both Plaintiffs Title VII race/col- or discrimination claims and Plaintiffs Title VII retaliation claim, Plaintiff filed a response, Defendant filed a reply, and Plaintiff filed a surreply.
II. Analysis
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
(c) Procedures. (1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.12
A. Plaintiffs Title VII Discrimination Claims
Defendant moves for summary judgment on Plaintiffs Title VII race/color discrimination claims. “Intentional discrimination can be established through either direct or circumstantial evidence.”
Plaintiff testified in her deposition that Raborn made the following statements/inquires: (1) Raborn wanted to know who was Mexican in a doctor’s office, and Plaintiff replied that Mexicans come in all different colors. Raborn then began telling her about a “dark skinned” doctor who ended up being Iranian.
The Fifth Circuit has endorsed a four-part test for determining whether comments are direct evidence of discrimination:
[I]n order for comments in the workplace to provide sufficient evidence of discrimination, they must be 1) related [to the protected class of persons of which the plaintiff is a member]; 2) proximate in time to the [complained-of adverse employment decision]; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue.22
To the Court’s knowledge, the term “ding bat” has no racial connotation. The Court will not address that allegation further. As to the comment regarding her daughter, it does not satisfy the four-part test because Plaintiff has not demonstrated that the comment was related to the Plaintiffs termination in March (or any other action of Defendant). The remaining two comments fail for the same reason and because they are not related to the class of which Plaintiff is a member. The Court finds that Plaintiff has failed to produce any direct evidence of discrimination.
Because Plaintiffs discrimination claims are based on circumstantial evidence, the Court will analyze them under the McDonnell Douglas framework.
*511 Under this tripartite framework, a plaintiff first must raise a genuine issue of material fact as to all four elements of a prima facie case of discrimination. To establish a prima facie case, the plaintiff must show that ‘(1) she is a member of a protected class, (2) she was qualified for her position, (3) she suffered an adverse employment action, and (4) others similarly situated were more favorably treated.’ Once this prima facie case is established, the employer has an opportunity to articulate a legitimate, non-discriminatory reason for the adverse employment action. Once the employer offers evidence of such a legitimate reason, the burden shifts back to the plaintiff-employee to raise a genuine issue of material fact that this non-discriminatory reason is merely pretextual.23
Additionally, Plaintiff may satisfy the fourth prong of her prima facie case by demonstrating that she was replaced by someone outside her protected class.
1. Plaintiff’s Prima Facie Case of Discrimination
Defendant does not dispute that Plaintiff was a member of a protected class, that she suffered an adverse employment action (termination), and that she was qualified for the job.
Here, Plaintiff has directed the Court to evidence that Plaintiff was replaced by someone outside Plaintiffs protected class. Specifically, Thomas Raborn testified that Plaintiff was replaced by a white woman.
2. Defendant’s Burden of Production
Defendant argues that it had a legitimate non-discriminatory reason for firing Plaintiff. Defendant directs the Court to evidence that Plaintiff was falsifying reports. In particular, some reports indicated that she was in two places at once,
Plaintiff does contend that Defendant’s reasons for terminating her are merely pretextual. “A plaintiff may establish pretext by showing that a discriminatory motive more likely motivated her employer’s decision, such as through evidence of disparate treatment, or that [her employer’s] explanation is unworthy of credence.”
a. Increased Scrutiny and Assignments After the Field Ride
As a means of showing pretext, Plaintiff argues that after the November 9, 2010 field ride, she received increased scrutiny and work assignments.
After sifting through Plaintiffs response and surreply, it appears that the “increased scrutiny” Plaintiff is referring to is Raborn’s investigation of Plaintiffs compliance with Defendant’s policies and his criticism of her sales.
As to Raborn’s criticism of Plaintiffs sales,
Additionally, Plaintiff claims that she was given increased work assignments. She stated that on November 17, 2010, Raborn assigned her “5 last minute physician speaker programs.”
In Plaintiffs response, she also complains that she was required to revise her territory plan when other sales representatives were not required to make revisions or even make a territory plan at all.
b. Investigation Surrounding Calls on Dr. Hernandez
Plaintiff also asserts that Defendant’s handling of its investigation surrounding calls on Dr. Hernandez is evidence of pretext. In particular, the evidence establishes that Plaintiff documented calls to Dr. Hernandez as being face-to-face when in fact they were not, and Plaintiff admitted as much. The evidence also establishes that Defendant investigated three other employees who documented face-to-face contact with Dr. Hernandez. Defendant found that the three other employees had face-to-face contact. Nonetheless, Plaintiff asserts that she was fired for improperly recording calls on Dr. Hernandez when the three other employees were not fired.
Plaintiff offers an affidavit from Dr. Hernandez, wherein he states that he had not met with any of Defendant’s employees in over four years.
Second, Plaintiff argues that Defendant’s failure to follow its own policy when it investigated her and the other sales people who had been reporting calls on Dr. Hernandez is evidence of pretext.
Plaintiffs argument that Defendant did not follow its own policies is based in part on the deposition of Jaime Preston,
Preston stated:
“It is standard protocol that if you believe someone may have falsified calls, that you look at their—the calls that they have entered in the system and you call offices to ensure that those physicians were present that day.”58 “I did not say that you had to call their office. I said the standard protocol is to call offices as you look at data.”59
It is Plaintiffs position that Defendant had a policy which required doctors to be contacted if call falsification was suspected. Furthermore, it is undisputed that Defendant stopped its investigation of Plaintiff
Even assuming there was a standard protocol which required a doctor’s office to be called when call falsification was suspected; this is not a case where no investigation was conducted. On the contrary, Defendant investigated all four employees, but stopped short of contacting the doctor’s office. Thus, the deviation from the allegedly official procedures in this case is minor. Furthermore, the facts of this case reveal that the investigation was stopped because Defendant reasonably believed that it had determined what actually happened. The Court does not interpret the law as requiring an employer to blindly follow its own investigation procedures if a reasonable investigator would have terminated the investigation prior to completing those procedures. The evidence demonstrates that Defendant terminated its investigation without calling Dr. Hernandez’ office only after it appeared that the relevant fact issues had been resolved. Thus, even if Defendant technically departed from its investigation procedures, such departure it is not evidence of pretext.
c. Whether Plaintiff Violated Sales Call Policy
Plaintiff also challenges Defendant’s position that she violated sales call policy. First, Plaintiff argues that she did not actually violate the sales call policy by failing to daily document her calls.
Second, Plaintiff claims that there is no evidence that Plaintiff “falsified calls” under Defendant’s U.S. Policy on Documenting Sales calls.
A sales call is a face-to-face interaction that meets both of the following criteria:
• Is between a Lilly sales representative and appropriate HCP customer
• Includes a dialogue ....63
Furthermore, the policy states that “[f]or each sales call, the sales representative must accurately document the interaction ____”
It is undisputed that Plaintiff documented sales calls to Dr. Hernandez (which by definition are face-to-face calls to include a dialogue) which in fact did not occur. Nonetheless, it is Plaintiffs position that she made all the sales calls she recorded,
Ultimately, Plaintiff has failed to provide evidence that she did not “falsify calls” or that her improper documentation of calls was a non-terminable offense. It is clear that she does not believe that her conduct constituted call falsification, but it was Defendant’s policy that calls be accurately documented and classifying improperly documented calls as call falsification does not demonstrate pretext. The Court will not second-guess whether treating improperly documented calls as falsified calls is a good policy. The same is true of Plaintiffs argument that Defendant did not clearly explain to Plaintiff that improperly documenting calls could be treated as a terminable offense.
Plaintiff has not demonstrated that classifying improperly documented calls as falsified calls was at odds with Defendant’s internal policies or that Plaintiff was treated differently than similarly situated employees. Therefore, the Court finds that Defendant’s treatment of Plaintiffs improperly documented calls is not evidence of pretext.
d. Other Failures to Follow Policy
Plaintiff also attempts to show pretext by directing the Court to other alleged failures of Defendant to follow its own internal policies in its dealings with Plaintiff.
i. Handling of Plaintiff’s December 1, 2010 Complaint
First, Plaintiff alleges that Defendant failed to follow its own policies after she reported Raborn’s comments on De
Here, Plaintiff has failed to articulate how Defendant’s handling of Plaintiffs discrimination complaint suggests that Defendant’s proffered reasons for terminating Plaintiff were pretextual. Instead, Plaintiff appears to believe that any departure from internal proeedures/policies is automatically evidence of pretext. But, not all departures from internal policy are evidence of pretext. An employee must do more than simply point out every deviation from internal procedures/policies she encountered during her employment. To be evidence of pretext, the departures from internal proeedures/policies must provide a reasonable basis for a fact finder to disbelieve the legitimate reason the Defendant has articulated for its adverse employment action. In this case, the causal connection to the termination of Plaintiffs employment is not evident, and Plaintiff has not articulated the causal connection. Therefore, the Court finds that Defendant’s handling of Plaintiffs December 1, 2010 complaint is not evidence of pretext.
ii. Defendant’s Investigation of Improperly Documented Calls
Similar to her argument regarding the inadequacy of Defendant’s investigation of the Dr. Hernandez issue, Plaintiff argues that Defendant failed to follow its own internal policies when it was investigating reports that indicated she was in two places at once.
e. Raborn’s Comments to Plaintiff
Plaintiff also asserts that Raborn’s November 2010 comments are evidence of pretext.
Where a plaintiff offers remarks as circumstantial evidence alongside other alleged discriminatory conduct, however,*518 we apply a more flexible two-part test. In that circumstance, a plaintiff need only show (1) discriminatory animus (2) on the part of a person that is either primarily responsible for the challenged employment action or by a person with influence or leverage over the relevant decisionmaker.82
Because the Court set forth the alleged comment above, it will not repeat them here. After reviewing the alleged comments, none of them satisfy the two-part test. Although the comments reference race and color, none of them reveals a discriminatory animus. Even the comments that referenced African-Americans and people with dark skin were not negative about those groups. Therefore, the Court finds that Plaintiffs allegations regarding Raborn’s November 9, 2010 comments are not evidence of pretext.
f. Pretext Conclusion
After considering Plaintiffs arguments and evidence that Defendant’s proffered reasons for terminating Plaintiff were pretextual, the Court finds that Plaintiff has failed to produce evidence of pretext. Therefore, the Court GRANTS summary judgment for Defendant on Plaintiffs Title VII race/color discrimination claims.
B. Plaintiffs Title VII Retaliation Claim
Defendant also moves for summary judgment on Plaintiffs Title VII retaliation claim. Plaintiffs briefing contains nothing more than a conclusory assertion in a footnote that she has direct evidence of retaliation.
1. Plaintiffs Prima Facie Case of Retaliation
The Fifth Circuit has set forth the elements of a prima facie case of retaliation:
To establish a prima facie case of retaliation, the plaintiff must establish that: (1) he participated in an activity protected by Title VII; (2) his employer took an adverse employment action against him; and (3) a causal connection exists between the protected activity and the adverse employment action.87
Here, it is clear that there was an adverse employment action because Plaintiff was terminated. Additionally, Defendant does not dispute for the purposes of summary
First, there is the issue of whether Plaintiffs comments to a co-worker in November 2010, are protected activity. Plaintiff testified that she called Jennie Anthony, a previous counterpart, and told her about the November 2010 field ride, including Raborn’s comments.
Although Plaintiffs communication with Jennie Anthony was not protected activity, Raborn testified that either Jennie or another employee told him that Plaintiff was concerned that Raborn was making racial comments.
Second, Plaintiff testified that she reported her concerns about Raborn to Don Mason, a compliance officer employed by Defendant, on March 3, 2011-, the day before she was fired.
After talking to Don Mason, but before she was fired, Plaintiff called the compliance hotline and made a complaint.
Turning to the third prong of Plaintiffs prima facie case, the Court must now evaluate whether there is a causal connection between Plaintiffs protected activity pertaining to the December 1, 2010 complaint and her termination. There is evidence that after Plaintiff was fired, Don Mason raised the issue of Plaintiffs concerns with Raborn, and Raborn indicated that he was aware of the issue. Specifically, Plaintiff produced notes from Defendant’s human resources department which include the following sentence: “Don [Mason] said that he mentioned the racist remarks to
Because Defendant concedes the first two points of a prima facie case of retaliation, and there is a fact issue regarding the causality prong, the Court finds that Plaintiff has established a prima facie case of retaliation.
2. Defendant’s Burden of Production
Above, the Court explained that Defendant had met its burden of producing a non-discriminatory reason for terminating Plaintiffs employment. For the same reasons, the Court finds that Defendant has met its burden of producing a non-retaliatory reason for terminating Defendant’s employment.
3. Whether Plaintiff Has Produced Evidence of “But-For” Causation
Once Defendant has offered a legitimate non-discriminatory reason for the termination, Plaintiff may defeat summary judgment by offering evidence that “but-for” her protected activity she would not have been terminated. Plaintiff may meet her burden “showing] that the proffered reason was a pretext or that the employer acted with mixed motives.”
The Court has already addressed many of Plaintiffs arguments that Defendant’s proffered reasons for terminating her are pretextual. Above, the Court found no evidence of pretext related to Plaintiffs discrimination claim. Now the Court will consider evidence of “but-for” causation that is only applicable to Plaintiffs retaliation ease.
Plaintiff argues that there is evidence that the decision makers knew of her protected activity and that she was fired soon after she engaged in protected activity.
“[T]emporal proximity alone, when very close, can in some instances establish a prima facie case of retaliation. But we affirmatively reject the notion that temporal proximity standing alone can be sufficient proof of but for causation. Such a rule would unnecessarily tie the hands of employers.99
Thus, even assuming that the decision makers in this case were aware of Plaintiffs protected activity and that her protected activity was very close in time to her termination, that is not sufficient for Plaintiff to survive summary judgment. Rather, Plaintiff must present substantial evidence on the “but for” ultimate issue.
III. Conclusion
After considering the motion, response, reply, surreply, record and relevant authorities, the Court GRANTS Defendant’s motion for summary judgment in its entirety. Specifically, the Court GRANTS Defendant’s motion for summary judgment on Plaintiffs Title VII race/color discrimination claims. Furthermore, the Court GRANTS Defendant’s motion for summary judgment on Plaintiff’s Title VII retaliation claim.
IT IS SO ORDERED.
. Dkt. Nos. 24-25.
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. Dkt. No. 3 at ¶¶ 4.3-4.4.
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. Fed. R. Civ. P. 56(a).
. FED. R. CIV. P. 56(c).
. Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir. 2007).
. Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).
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. de la O v. Hous. Auth. of City of El Paso, Tex., 417 F.3d 495, 501 (5th Cir. 2005) (citations omitted).
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. Willis v. Coca Cola Enters., Inc., 445 F.3d 413, 420 (5th Cir. 2006) (quoting Rutherford v. Harris Co., Tex., 197 F.3d 173, 184 (5th Cir. 1999) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Johnson v. Louisiana, 351 F.3d 616, 621 (5th Cir. 2003))).
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. Plaintiff may also satisfy this third prong of McDonnell Douglas by showing that Defendant’s reason, while true, is only one reason for its decision and that another motivating factor is Plaintiff's protected status. Autry v. Fort Bend ISD, 704 F.3d 344, 347 (5th Cir. 2013). However, other than in a footnote, Plaintiff has not raised this issue.
. Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001) (internal quotation marks and citation omitted).
. Vaughn v. Woodforest Bank, 665 F.3d 632, 637 (5th Cir. 2011) (internal quotation marks and citations omitted).
. Id. (internal quotation marks and citations omitted).
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. Dkt. No. 29-12.
. Dkt. No. 29-12.
. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995).
. Dkt. No. 35 at p. 23.
. Machinchick v. PB Power, Inc., 398 F.3d 345, 354 & n. 29 (5th Cir. 2005).
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. Random House Webster’s Unabridged Dictionary 14 (2d ed. 2001).
. Dkt. No. 29 atp. 12.
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.Dkt. No. 31-2 at p. 3.
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. Reed v. Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012) (citing Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2000)).
. Dkt. No. 35 at p. 28 n. 21.
. Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012) (internal quotation marks and citations omitted).
. Id. at 657 (citation omitted).
. Id. at 658. (internal quotation marks and citation omitted).
. McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007).
. Dkt. No. 24-1 at pp. 31-32.
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. Gibson v. Verizon Servs. Org., Inc., 498 Fed.Appx. 391, 396-97 (5th Cir. 2012) (citation omitted).
. Cf., Nunley v. City of Waco, 440 Fed.Appx. 275, 277, 280-81 (5th Cir. 2011).
. Dkt. No. 35 at pp. 34-40.
. Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007) (citation omitted).
. Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012).
. Id. (internal citation omitted).
Reference
- Full Case Name
- Jiea M. RUTLAND-SIMPSON v. ELI LILLY AND COMPANY
- Status
- Published