Breeden v. Novartis Pharmaceuticals Corporation ( 2010 )

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
A jury found in favor of plaintiff Mary Kate Breeden on
her claim that her former employer, Novartis Pharmaceuticals
Corporation, had illegally retaliated against her for taking
Family and Medical Leave Act (“FMLA”) leave. Novartis now moves
under Federal Rule of Civil Procedure 50(b) for judgment as a
matter of law notwithstanding the verdict.1 The motion will be
granted.
The basic facts of this case are described in detail in
my memorandum opinion granting in part and denying in part
Novartis’ summary judgment motion. See Breeden v. Novartis
Pharm. Corp., 2010 U.S. Dist. LEXIS 13232, at *1-4 (D.D.C.
Feb. 16, 2010). In short: Breeden was a salesperson in Novartis’
transplant drugs unit. In early 2005 she took FMLA leave because
she was pregnant. Around the same time (and after Novartis knew
about Breeden’s pregnancy and her plan to take leave), Novartis
1
Novartis moves in the alternative for a new trial pursuant
to Rule 59(a).
realigned its transplant sales force and assigned Breeden a
smaller sales territory than she had had previously. Breeden
complained about the change. One of her supervisors promised her
that she would be “made whole” soon after her return from leave.
No change was made to Breeden’s sales territory, but over the
next few years her merit-based income was greater than it had
been before the realignment, and her “sales rank” among her peers
improved. In 2008, a new management team carried out a new
general realignment. Breeden’s territory was merged with that of
another salesperson. The merger rendered one of the two
salespeople superfluous. Breeden, whose territory was the
smaller of the two, was terminated.
This case differs from the typical discrimination case,
in which an employee loses compensation or is fired and the
salary reduction or the termination itself is the alleged adverse
action. Here, the claimed unlawful acts were the 2005 sales
territory realignment and Novartis’ failure to restore Breeden’s
customers, but the termination –- the event for which a remedy is
demanded –- did not occur until three years later, in 2008.
Under the FMLA, “[t]he employer is liable only for
compensation and benefits lost ‘by reason of the violation,’ for
other monetary losses sustained ‘as a direct result of the
violation,’ and for ‘appropriate’ equitable relief . . . .”
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002)
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(quoting 29 U.S.C. § 2617(a)(1)(A)-(B)) (internal citations
omitted). The central question is therefore whether Breeden was
terminated, and thus lost compensation, “by reason of” the 2005
realignment. 29 U.S.C. § 2617(a)(1)(A)(i)(I). The three-year
gap between alleged unlawful act and claimed injury seriously
complicates that question.
In my summary judgment memorandum, I expressed concern
about whether Breeden’s evidence would be legally sufficient to
meet the “by reason of” standard, but because the issue was not a
focus of the parties’ briefs, I withheld judgment until she
presented her case-in-chief. See Breeden, 2010 U.S. Dist. LEXIS
13232, at *12-13. At trial, Novartis moved under Rule 50(a) for
judgment as a matter of law on causation, but pursuant to Rule
50(b), I did not decide the issue, submitting the action to the
jury “subject to the court’s later deciding the legal issues
raised by the motion.”2
Standard of Review
Courts “do not . . . lightly disturb a jury verdict.”
McGill v. Munoz, 203 F.3d 843, 845 (D.C. Cir. 2000). Under the
Federal Rules of Civil Procedure, a court may direct entry of
judgment as a matter of law contrary to a jury verdict only if “a
2
Novartis’ post-trial motion also objects to my decision to
give a “mixed motive” instruction and to the jury’s (apparent)
determination that Breeden did not fail to mitigate her damages,
but I need not reach either issue.
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reasonable jury would not have a legally sufficient evidentiary
basis to find for the party on th[e] issue [in question].” Fed.
R. Civ. P. 50(a)(1). “[I]n entertaining a motion for judgment as
a matter of law, the court should review all of the evidence in
the record. In doing so, however, the court must draw all
reasonable inferences in favor of the nonmoving party, and it may
not make credibility determinations or weigh the evidence.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000). In reviewing the non-moving party’s case, the question
is not whether there is some evidence, but whether there is
legally sufficient evidence. Siegel v. Mazda Motor Corp., 878
F.2d 435, 437 (D.C. Cir. 1989).
Analysis
The phrase “by reason of” imposes a causation
requirement upon recovery for lost compensation and benefits
under the FMLA. The law knows multiple definitions of causation,
however, and the exact meaning of “by reason of” in the FMLA has
not been developed.
The two most familiar standards of causation, borrowed
from tort law, are “factual” (or “but-for”) cause, and “legal”
(or “proximate”) cause. Breeden did present evidence that the
2005 realignment was a but-for cause of her termination: she was
terminated because her territory was the smaller of the two that
Novartis merged; and, if she had not been given a smaller
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territory in 2005, and if her supervisors had not failed to live
up to the promise to improve her territory, she would not have
been such a clear candidate for termination.
But-for causation without more, however, will not
satisfy the FMLA’s “by reason of” standard of proof. Although
the question appears to be one of first impression in this
circuit, a number of reasons strongly suggest that the FMLA’s “by
reason of” standard incorporates a proximate cause requirement.
First, the words “by reason of” indicate that the adverse action
must be the principal cause -- the reason -- for the loss of
compensation. Second, “by reason of” has been interpreted to
incorporate a proximate cause requirement in several other
federal statutes. See Holmes v. Sec. Investor Prot. Corp., 503
U.S. 258, 265-68 (1992) (RICO civil suits); Associated Gen.
Contractors v. Cal. State Council of Carpenters, 459 U.S. 519,
531-36 (1983) (Clayton Act § 4); Loeb v. Eastman Kodak Co., 183
F. 704, 709-10 (3rd Cir. 1910) (Sherman Act § 7); Rothstein v.
UBS AG, 647 F. Supp. 2d 292, 295 (S.D.N.Y. 2009) (Anti-Terrorism
Act); but see Boim v. Holy Land Found. for Relief & Development,
549 F.3d 689, 695-98 (7th Cir. 2008) (en banc) (adopting
“relaxed” causation standard, based on policy considerations, for
Anti-Terrorism Act). Congress, which passed the FMLA in 1993,
see Pub. L. No. 103-3, 107 Stat. 6, is presumed to legislate with
knowledge of pre-1993 case law and, by using the same words
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again, to desire that the same interpretation be given. See,
e.g., Holmes, 503 U.S. at 268. Finally, interpreting “by reason
of” to incorporate a proximate cause requirement comports with
the FMLA’s stated purpose of balancing employees’ interests in
family and health leave against the legitimate interests of
employers. See 29 U.S.C. § 2601(b)(1)-(3).
Proximate cause is subject to numerous definitions.
Two approaches are most common: one asks from an ex ante
perspective whether the harm was reasonably foreseeable by the
wrongdoer at the time of the wrongful act; the other asks from an
ex post perspective whether the harm was a direct result of the
wrongful act. See W. Page Keeton et al., Prosser and Keeton on
the Law of Torts (5th ed. 1984) § 42, p.273; see also Fowler v.
Harper et al., Harper, James and Gray on Torts (3d ed. 2007)
§§ 20.5-20.6 (describing the foreseeability test as the most
common view). Regardless of which approach is taken, the record
of this case does not contain legally sufficient evidentiary
basis for a reasonable jury to find that Novartis’ 2005
realignment was the proximate cause of Breeden’s termination in
2008. The best Breeden can do is argue without evidence (except,
perhaps, for Breeden’s own opinion) that the 2005 realignment
rendered her termination “inevitable.” It is true that she
adduced evidence that her post-realignment territory had fewer
customers, with fewer transplant operations, than her pre-
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realignment territory, and Breeden testified that she was no
longer busy throughout her workday after the 2005 realignment.
But Breeden did not prove that the realignment rendered her
services dispensable, or no longer economically valuable, nor did
she show that anyone expected a reduction in sales force as a
result of the 2005 realignment; the jury was left to reach its
own conclusion about the “inevitability” of Breeden’s
termination, without legally sufficient evidence of proximate
cause.
If the record establishes anything, indeed, it is that
the 2005 and 2008 realignments were completely disconnected from
one another. There is no evidence that those involved with the
2005 realignment -- primarily transplant unit head Brian
O’Callaghan and the ZS Associates consulting firm -- actually
anticipated Breeden’s termination. Neither O’Callaghan nor ZS
Associates had any involvement with the 2008 realignment. It was
a new transplant unit head, Jesus Leal, and a different outside
consulting firm, Powell & Associates, that reached the
realignment decisions that resulted in Breeden’s termination.
That second realignment implemented a new business strategy,
developed by new strategists. There is no evidence that the 2008
realignment was foreseeable from 2005 (ex ante), and because the
2008 realignment was a substantial intervening cause, Breeden’s
termination cannot be staid to have been the direct result (ex
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post) of the 2005 realignment,3 or of Novartis’ failure to
increase the size of Breeden’s sales territory thereafter.
Conclusion
Because Breeden adduced no legally sufficient evidence
that she lost compensation or benefits “by reason of” the act and
failure to act about which she complains, judgment as a matter of
law must be entered for Novartis. An appropriate order
accompanies this memorandum.
JAMES ROBERTSON
United States District Judge
3
Breeden argues that she had the same direct supervisor
throughout the time period at issue, Tom Harper, and that his
constant presence undermines Novartis’s argument that the shift
in management team represents a substantial intervening cause.
But Breeden has presented no evidence that Harper had any
influence on the 2008 realignment or on the decision to terminate
her.
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