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 AND ORDER
Mary Kate Breeden sues her former employer Novartis
Pharmaceuticals Corporation under the Family and Medical Leave
Act (“FMLA”), 29 U.S.C. §§ 2601, 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. Id. 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. Id. 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. Id. at 4. Soon after her return, she was
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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. Id. 13. 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.
Id. Because Breeden’s accounts produced fewer prescriptions than
those of her co-worker, Novartis terminated her employment on
January 10, 2008. Id.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. Id.- 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 29 C.F.R. § 825.215(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., 2005 WL 6133905, 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.
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territories and had to look for side projects to fill her time.
Pl. St. Facts. 8; cf. 29 C.F.R. § 825.215(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., 453 F.3d 650, 652 (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 29 C.F.R. § 825.215(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
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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, 559 F.3d 706, 712 (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 29 C.F.R. § 825.215(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.” 29 C.F.R. § 825.215(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.
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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., 239 F.3d 1199, 1208 (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, 605
F. Supp. 2d 20, 26 (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., 272 F.3d 309, 315
(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.
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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, 548 U.S. 53, 68 (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., 293 F. App'x 331, 337 (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, 600 F. Supp. 2d 38,
66 (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 29 C.F.R. § 825.215(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, 529 F.3d 961, 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, 293 F. App'x at 337 (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
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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., 231 F.3d 791, 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., 498 F.3d
561, 571 (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.”
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Novartis’s proffer of a legitimate business purpose for
its decision, see Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 142 (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 id. 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.
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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 29 U.S.C.
§ 2617(a); Roseboro v. Billington, 606 F. Supp. 2d 104, 108
(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., 241
F. App'x 917, 924 (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
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