Irene Laurora v. Bayer Corp

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-2764
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IRENE LAURORA,
Appellant
v.
BAYER CORP; JOHN O’MULLANE, in his individual and professional capacities;
BAYER HEALTHCARE HOLDINGS LLC
______________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(Civ. No. 2:16-cv-09041)
District Judge: Honorable Esther Salas
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Submitted on July 14, 2022
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Before: GREENAWAY, JR., MATEY, and NYGAARD, Circuit Judges,
(Opinion Filed: September 7, 2022)
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OPINION ∗
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∗
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.
GREENAWAY, JR., Circuit Judge.
Dr. Irene Laurora (“Appellant”) commenced this retaliation action against Bayer
Corp., Bayer Healthcare Holdings LLC (together “Bayer”) and Dr. John O’Mullane
(collectively, the “Appellees”). She alleges that Bayer retaliated against her after she
objected to Dr. O’Mullane’s purported discrimination against another female employee.
We will affirm the District Court’s grant of summary judgment in favor of Appellees.
Dr. Laurora has failed to establish direct evidence of retaliation since the statements she
relies on are ambiguous. Additionally, she has failed to offer circumstantial evidence of
retaliation because she did not set forth sufficient evidence to establish pretext.
BACKGROUND
A. Factual History
Dr. Laurora joined Bayer as the Vice President, Global Medical Affairs,
Analgesics, Cough, Cold and New Products in October of 2007. She remained in this
position until July of 2013. She then served as the Head of U.S. Medical Affairs from
August 2013 to January 2015. Thereafter, Dr. Laurora was selected to serve as the Vice
President/Category Leader for Analgesics, Cough, Cold, Cardio, and Foot Care, a newly
created position. In this role, Dr. Laurora was one of five Category Leaders who reported
to Dr. O’Mullane, who served as Bayer’s Head of Innovation & Development. Shortly
after starting this role, Dr. Laurora’s team began working with TTP, a third party, to
develop a new nasal delivery system for one of Bayer’s products (the “TTP Project”).
Dr. Laurora tasked one of her direct reports, Margaret Gryszkiewicz, with spearheading
the TTP Project.
2
On May 8, 2015, during a meeting between Dr. O’Mullane, Dr. Laurora,
Gryszkiewicz, and Simon Gilburt (a Bayer employee who worked in the Allergy
division), Dr. O’Mullane inquired about who was leading the TTP Project. After
Gryszkiewicz, who was pregnant at the time, replied that it was she, Dr. Laurora recalls
Dr. O’Mullane stated “[s]omething along the lines of Margaret, I don’t see how you can
be the project champion because of your impending family event.” JA1429. It was
ultimately decided that Gilburt would lead the TTP project.
The following day, Dr. Laurora sent Dr. O’Mullane an email objecting to Dr.
O’Mullane’s comments about Gryszkiewicz’s condition. Specifically, she stated:
Dear John
I feel compelled to share my feelings regarding the treatment of Margaret
yesterday. In no uncertain terms Margaret was told that she could not be a project
“champion” 1 because of her pending maturity [sic] leave. Meanwhile this is a
project that has been going on for almost two years and has at least a 2 to 3 year
program ahead, 3 months would not be a problem for someone (either me or
Simon) to cover.
After your initial feedback from your meeting with TPP she and I discussed that
she would champion the project and she has been working closely with her
business partner. However[,] we both felt it was most appropriate to be Bayer’s
champion not TPP’s champion.
The project was transferred to us in March. Margaret has been working hard to
move the project forward since then. I feel that the way the meeting took place
was very inappropriate and disrespectful of Margaret.
I felt I needed to tell you.
Irene
JA764-65.
1
At Bayer, the term “Project Champion” referred to the individual tasked with leading a
particular project.
3
The next day, Dr. O’Mullane sent this reply:
Hi Irene
I appreciate your candid feedback – it’s something you and I must discuss further.
I don’t believe this is the way to develop trust and integrity in our relationship.
Confronted with the same situation my approach would have been to discuss this
with my leader and then take a revised recommendation back to the person
impacted if a change of direction was agreed as the result of that discussion.
Acting in the way that you did sets a tone that you have the final decision in this
matter . . . . .
I would have made the same decision for anybody knowing that they were about
to take a significant planned absence. This was not intended to be disrespectful of
Margaret but frankly the opposite of wanting to be respectful to her at a time when
we need to have somebody fulfil this role who is present at this very critical time. I
don’t see how Margaret can do that but I am prepared to discuss further if you
have a different POV.
John
JA765-66.
Following this email correspondence, Dr. Laurora alleges that Dr. O’Mullane
retaliated against her. As relevant here, she alleges that he: (1) gave her a negative rating
for her 2015 performance review; (2) denied her the Rx-OTC Switch Science position;
(3) eliminated her role; and (4) failed to find her a new role after hers was eliminated.
Specifically, within Dr. Laurora’s 2015 performance review, Dr. O’Mullane gave
her a Partially Meets Expectations rating within the subcategory of Leadership. He
stated:
Irene’s style is one of leading from the front, which in many situations is great and
in other situations such as the Category role does not always work to her
advantage. Her style of Leadership needs to be moderated for her to truly [be]
successful in this role. I would suggest some reflection on how to create an
environment of abundance and looking for strong win-win situations where she
can demonstrate her ability to truly lead an organization.
4
JA783. In response to this comment, Dr. Laurora wrote:
[s]ince this Category Leadership role is new (to the organization and to me
personally) I have appreciated feedback from others and spent time reflecting on
the way I work. I will actively incorporate changes to my leadership style as a
result.
Id.
In addition, the Vice President of Rx-to-OTC Switch Science role that Dr. Laurora
was denied was initially given to an employee (Kristie Licata) on the commercial side of
business on an interim basis even though Dr. Laurora had relevant prior experience.
Ultimately, Bayer merged the Vice President of Rx-to-OTC with that employee’s existing
commercial role.
Following Bayer’s restructuring, Bayer eliminated all of the Category Leader roles
that reported to Dr. O’Mullane, including Dr. Laurora’s. Dr. Laurora was subsequently
denied other positions at her level (including Head of Therapeutics and Head of
Innovation and Development Operations). Because she did not find an alternative role at
her level or with the same total compensation, her employment with Bayer terminated on
September 30, 2016.
B. Procedural History
Appellant commenced this action on December 7, 2016. On August 13, 2018, she
filed an amended complaint, alleging retaliation claims under the Family Medical Leave
Act (“FMLA”), the New Jersey Law Against Discrimination (“NJLAD”), and Title VII
of the Civil Rights Act of 1964 (“Title VII”). Thereafter, on February 13, 2019,
Appellees filed a motion for summary judgment, which the District Court granted. The
5
District Court concluded that Appellant failed to establish direct evidence of retaliation.
The District Court likewise concluded that she failed to establish circumstantial evidence
of retaliation because she did not establish a prima facie case. Appellant timely appealed.
JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332 and supplemental
jurisdiction over Plaintiff’s NJLAD claims pursuant to 28 U.S.C. § 1367(a). We have
jurisdiction pursuant to 28 U.S.C. § 1291.
We conduct a plenary review of a district court’s grant of summary judgment.
Goldenstein v. Repossessors Inc., 815 F.3d 142, 146 (3d Cir. 2016). “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.” Fed. R. Civ. P.
56(a). We draw all reasonable inferences from the record in favor of the nonmoving
party. MBIA Ins. Corp. v. Royal Indem. Co., 426 F.3d 204, 209 (3d Cir. 2005).
DISCUSSION
Pursuant to the FMLA, an employee is entitled to take 12 workweeks of leave due
to the birth of a child. 29 U.S.C. § 2612(a)(1). The FMLA protects this right by
prohibiting employers from: (1) “interfer[ing] with, restrain[ing], or deny[ing] the
exercise of or the attempt to exercise” rights provided under the statute, 29 U.S.C.
§ 2615(a)(1); and (2) “discharg[ing] or in any other manner discriminat[ing] against any
individual for opposing any practice made unlawful,” 29 U.S.C. § 2615(a)(2).
Likewise, Title VII prohibits employers from discriminating against employees on
the basis of sex. 42 U.S.C. § 2000e-2(a). This prohibition is breached “whenever an
6
employee’s pregnancy is a motivating factor for the employer’s adverse employment
decision.” In re: Carnegie Ctr. Assoc., 129 F.3d 290, 294 (3d Cir. 1997) (internal
quotation marks and citation omitted); see also Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d
358, 364 (3d Cir.), order clarified, 543 F.3d 178 (3d Cir. 2008). Title VII also “makes it
unlawful for an employer to retaliate against an employee ‘because he has opposed any
practice made an unlawful employment practice by this subchapter . . . .’” Kengerski v.
Harper, 6 F.4th 531, 536 (3d Cir. 2021) (quoting 42 U.S.C. § 2000e-3(a)).
Lastly, the NJLAD prohibits employers from discriminating against employees on
the basis of pregnancy. N.J. Stat. Ann. § 10:5-12(a). “The LAD is violated not only
when an individual of a protected class is discriminated against, but also when reprisal is
taken against any person who opposed such actions or practices forbidden by the LAD . .
. .” Rodriguez v. Raymours Furniture Co., 138 A.3d 528, 535 (2016) (citing N.J. Stat.
Ann. §§ 10:5-12(d)).
Retaliation claims under the FMLA, Title VII and the NJLAD are assessed
through the same evidentiary framework. See Lichtenstein v. Univ. of Pittsburgh Med.
Ctr., 691 F.3d 294, 301–02 (3d Cir. 2012) (“Because FMLA retaliation claims require
proof of the employer’s retaliatory intent, courts have assessed these claims through the
lens of employment discrimination law.”); Sarnowski v. Air Brooke Limousine, Inc., 510
F.3d 398, 403 (3d Cir. 2007) (citing Andersen v. Exxon Co., U.S.A., 446 A.2d 486, 490
(1982)) (“In applying the LAD, the New Jersey anti-discrimination law, courts use the
same burden-shifting framework that the Supreme Court adopted in McDonnell Douglas .
. . .”). Under each of these statutes, a plaintiff can establish retaliation in two ways: direct
7
evidence and circumstantial evidence. See Lichtenstein, 691 F.3d at 301–02. Here,
Appellant brings her retaliation claims under both theories. We will address each in turn.
A. Direct Evidence
Evidence constitutes direct evidence of retaliation if “it demonstrates that the
‘decisionmakers placed substantial negative reliance on an illegitimate criterion in
reaching their decision.” Walden v. Georgia–Pacific Corp., 126 F.3d 506, 513 (3d Cir.
1997) (internal quotation marks and citation omitted). “Such evidence leads not only to a
ready logical inference of bias, but also to a rational presumption that the person
expressing bias acted on it when he made the challenged employment decision.” Fakete
v. Aetna, Inc., 308 F.3d 335, 338 (3d Cir. 2002) (internal quotation marks and citation
omitted). If a plaintiff produces direct evidence, “the defendant [then] has the burden of
producing evidence to show that it would have made the same decision in the absence of
discriminatory [or retaliatory] animus.” Anderson v. Wachovia Mortg. Corp., 621 F.3d
261, 269 (3d Cir. 2010).
We have specified that for evidence to be considered direct evidence it: (1) “must
be strong enough to permit the factfinder to infer that a discriminatory [or retaliatory]
attitude was more likely than not a motivating factor in the [defendant’s] decision[;]” and
(2) “the evidence must be connected to the decision being challenged by the plaintiff.”
Id. Generally, “[w]e have referred to these requirements as creating a high hurdle for
plaintiffs.” Id. (internal quotation marks and citation omitted).
In addition, we have stated that certain circumstantial evidence “can fairly be said
to directly reflect the alleged unlawful basis for the adverse employment decision.”
8
Fakete, 308 F.3d at 339 (internal quotation marks and citation omitted) For example,
statements that “are not made at the same time as the adverse employment decision” can
constitute direct evidence if the statements come from “a person involved in the
decisionmaking process [and] reflect a discriminatory or retaliatory animus of the type
complained of in the suit.” Id. (internal quotation marks and citation omitted). However,
we have also stated that “any statements made by a defendant’s employees must be made
at a time proximate to the challenged decision and by a person closely linked to that
decision.” Anderson, 621 F.3d at 269 (citation omitted).
Here, Appellant argues that Dr. O’Mullane’s email reflects unlawful bias that
formed the basis of the four aforementioned adverse employment actions: (1) the
negative performance review in 2015; (2) the decision to pass over her for Rx-to-OTC
Switch Science position; (3) the decision to eliminate her role; and (4) the failure to
provide her a new role after hers was eliminated. Specifically, she contends that Dr.
O’Mullane’s email “clearly express[ed] his displeasure with [her] for complaining, in
writing, about his discriminatory conduct,” Appellant Br. at 19, and that Dr. O’Mullane
“link[ed] her decision to complain about discrimination to what he perceived to be a
failure in leadership.” Id. at 19–20. We reject these arguments.
Dr. O’Mullane’s email cannot “fairly be said to directly reflect the alleged
unlawful basis for the adverse employment decision.” Fakete, 308 F.3d at 339. As
Appellant concedes, the email is ambiguous. See Appellant Br. at 30 (“[T]here are, at a
minimum, other possible interpretations of O’Mullane’s May 10, 2015 e-mail”). Indeed,
it could be said to reflect either an objection to the approach Appellant took in raising her
9
concerns or to her complaint itself. Such ambiguous statements cannot be used to
establish direct evidence of retaliation. See Anderson, 621 F.3d at 269 (concluding an
ambiguous phrase could not be used to demonstrate direct evidence of discrimination).
Therefore, we must analyze Appellant’s claims under the McDonnell Douglas burden-
shifting framework.
B. Circumstantial Evidence
Under the McDonnell Douglas burden shifting framework, a plaintiff must first
establish a prima facie case of retaliation. Moore v. City of Philadelphia, 461 F.3d 331,
340–41 (3d Cir. 2006), as amended (Sept. 13, 2006). To do so, the plaintiff must
establish that: (1) she engaged in protected activity; “(2) the employer took an adverse
employment action against her; and (3) there was a causal connection between her
participation in the protected activity and the adverse employment action.” Id. (quoting
Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995)). If the plaintiff establishes a
prima facie case of retaliation, the burden then shifts to the defendant-employer to
“articulate a legitimate, nondiscriminatory reason for the adverse employment action.”
Capps v. Mondelez Glob., LLC, 847 F.3d 144, 152 (3d Cir. 2017). If the defendant
employer does so, “[t]he burden then shifts back to the plaintiff to prove, by a
preponderance of the evidence, that the articulated reason was a mere pretext for
[retaliation].” Id.Even assuming Appellant established a prima facie case of retaliation, which we
do not, her claim fails because she failed to establish that Bayer’s reasoning for its
adverse employment actions was pretextual. As a preliminary matter, the Court may
10
address pretext. “[A]lthough the District Court did not address [this issue], we can affirm
based on any grounds supported by the record.” Ridley Sch. Dist. v. M.R., 680 F.3d 260,
282 (3d Cir. 2012) (citing Chambers ex rel. Chambers v. Sch. Dist. Of Philadelphia Bd.
Of Educ., 587 F.3d 176, 184 (3d Cir. 2009)).
To establish pretext a plaintiff “must point to some evidence, direct or
circumstantial, from which a factfinder could reasonably . . . disbelieve the employer’s
articulated legitimate reasons.” Lichtenstein, 691 F.3d at 309–10 (quoting Fuentes v.
Perskie, 32 F.3d 759, 764 (3d Cir. 1994)). Put differently, a plaintiff “must demonstrate
such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
[the employer’s] proffered legitimate reasons for its actions that a reasonable factfinder
could rationally find them ‘unworthy of credence.’” Id. (quoting Fuentes, 32 F.3d at
765). A plaintiff must also demonstrate that “the exercise of a protected right was a
determinative factor and therefore had a determinative effect on the [adverse employment
action] such that in the absence of the . . . protected conduct, the adverse employment
action would not have occurred.” Egan v. Del. River Port Auth., 851 F.3d 263, 268 n.1
(3d Cir. 2017) (citing Miller v. CIGNA Corp., 47 F.3d 586, 597 (3d Cir. 1995) (en banc)).
We will address each of the four adverse employment actions Appellant alleges, which
11
are also the ones the District Court found, to determine whether Appellees’ proffered
reason for such actions was pretextual. 2
1. Negative Performance Review
Appellees assert that Dr. O’Mullane provided legitimate reasons for Appellant’s
Partially Meets Expectations rating under the Leadership sub-category in her 2015
performance review. Though Appellees do not elaborate on what these reasons were,
presumably they are referring to Dr. O’Mullane’s comments explaining that Dr. Laurora
“lead[s] from the front,” and that such an approach “does not always work to her
advantage.” JA783. Appellees further point to Appellant’s response to these comments,
indicating that she appreciated the feedback and would incorporate it, as evidence that
she agreed with Dr. O’Mullane’s assessment.
Appellant responds by highlighting the fact that prior to her complaint, no one at
Bayer had expressed concerns about her leadership. As the District Court concluded, she
also contends that she did not concede that her leadership needed improvement.
Appellant has not met her burden to establish pretext. The fact that Appellant did
not receive negative comments concerning her leadership prior to raising her concerns
about Dr. O’Mullane’s statements does not cast sufficient doubt on his explanation for
the rating. This conclusion is bolstered by the fact that the rating was for a new category
in the performance review and it was Dr. O’Mullane’s first formal review of Appellant.
2
As discussed more fully below, Appellees offer various non-retaliatory reasons for each
of the four adverse employment actions at issue in this case. Appellant does not dispute
that Appellees satisfied their burden at step two of the McDonnell Douglas framework, so
our inquiry will focus on pretext.
12
See Couch v. Am. Bottling Co., 955 F.3d 1106, 1109 (8th Cir. 2020) (internal quotation
marks and citation omitted) (“It was also [the supervisor’s] first review of [the
employee], so any potential inference of discrimination from the uncharacteristically
negative review is weakened substantially by another rational explanation[:] . . . the
shifting expectations of [a] different supervisor[ ].”); Natofsky v. City of New York, 921
F.3d 337, 351 (2d Cir. 2019) (“That a prior administration had praised [the employee’s]
work is not enough to establish that the new administration could not have concluded that
he was underperforming.”).
2. Rx-to-OTC Switch Science Role
Appellees explain that Bayer “made a business decision to merge the duties
associated with [the Rx-to-OTC Switch Science] position with . . . an existing position
on the Commercial side of the business.” Appellees’ Br. at 53 (citing JA777). Appellant
argues that such reasoning is pretextual because Bayer only merged the position after
allowing another employee, who lacked adequate qualifications, the opportunity to take
on the role’s responsibilities on an interim basis. Appellant further asserts that this
approach demonstrates pretext because Appellant was qualified for the role yet was not
given the same opportunity.
Appellant has not satisfied her burden on pretext. The employee who was given
the responsibilities on an interim basis had already been serving in a switch science role
at the time she was given the opportunity. Appellant has not argued or otherwise
demonstrated that Bayer took an atypical approach in either providing such an employee
with this opportunity or deciding to merge the Rx-to-OTC Switch Science role with an
13
existing switch science role. Thus, she has not demonstrated “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in [the employer’s]
proffered legitimate reasons.” Lichtenstein, 691 F.3d at 309–10 (citation omitted). She
likewise has not shown that her complaint was the but for cause for Bayer denying her
the role. See Egan, 851 F.3d at 269.
3. Elimination of Appellant’s Role
Appellees state that the elimination of Appellant’s role was due to strategic
business objectives related to Bayer’s restructuring. They further note that all of the
Category Leader roles that were reporting to Dr. O’Mullane were eliminated. Appellant
does not offer any retort to this reasoning. As such, this is further evidence of
Appellant’s inability to establish pretext under the McDonnell Douglas framework. See
Capps, 847 F.3d at 152.
4. Failure to Find Appellant a New Role 3
Appellees explain that Appellant was not offered the Head of Therapeutics role
because that position was a full salary grade level higher than any of Appellant’s previous
roles and it had a broader scope of responsibilities. They also note that Bayer ultimately
3
In addition to the Head of Therapeutics and Head of Innovation and Development
Operations roles, Appellees also address two Development Center Lead positions. Since
Appellant does not make any arguments concerning why Appellees’ rationale for denying
her these positions was pretextual, she has failed to meet her burden at step three of the
McDonnell Douglas framework. See Capps, 847 F.3d at 152.
14
hired a candidate who, unlike Appellant, had a Ph.D and experience in research and
development.
Appellant argues that Appellees’ rationale “is contradicted by the record.” Rply.
at 23-24. She further contends that Appellees’ rationale is pretextual because they
provided “shifting rationales” for denying her the role. Id. At that time, she alleges
Appellees’ only rationale for the denial was her lack of leadership skills as evidenced by
her negative rating. However, in this litigation Appellees assert that she lacked the
requisite qualifications and experience. Appellant further argues that Appellees’
articulated reasons for selecting another candidate constitute “an after-the-fact
justification” because the candidate who received the role was hired approximately six
months after Appellant was terminated.
Additionally, Appellees explain that the Head of Innovation and Development
Operations role, which was located in Basel, Switzerland, was filled by a candidate who
was more qualified and had more relevant work experience. They also note that this
candidate was already located in Basel and thus, Bayer avoided paying relocation fees.
Appellant argues that such reasons were pretextual because Bayer routinely permitted its
employees to work remotely and travel to the office as necessary. She contends that
Bayer’s failure to do so in her case constitutes disparate treatment evincing pretext.
Appellant has failed to establish pretext concerning Bayer’s rationale for denying
her these positions. She has not demonstrated, for example, that she was more qualified
than the employees who were ultimately hired for either of these roles. See Porter v.
Shah, 606 F.3d 809, 816 (D.C. Cir. 2010) (internal quotation marks and citation omitted)
15
(the employee alleging retaliatory conduct “plainly lacked the stark superiority of
credentials over [the employee that was hired] that can give rise to an inference of
pretext.”). She otherwise has not shown that Bayer’s rationale for denying her these roles
was weak, inconsistent or contradictory, see Lichtenstein, 691 F.3d at 309–10, or that her
complaint was a but for cause of the denials, see Egan, 851 F.3d at 269. Indeed,
qualifications, experience, and logistics are all appropriate considerations for employers
to take into account while making hiring decisions. 4 Because Appellant failed to “prove,
by a preponderance of the evidence, that the articulated reason[s were] a mere pretext for
[retaliation],” Capps, 847 F.3d at 152, her retaliation claims against Appellees based on
circumstantial evidence must also fail.
CONCLUSION
For the foregoing reasons, we will affirm the District Court’s order, granting
summary judgment in favor of Appellees.
4
While Appellant does not make this argument, it is worth noting that temporal
proximity also supports our conclusions that she failed to establish pretext. We have
previously held that “the timing of the alleged retaliatory action must be unusually
suggestive of retaliatory motive” to demonstrate pretext. Ross v. Gilhuly, 755 F.3d 185,
194 (3d Cir. 2014). The adverse events here occurred several months after her complaint.
16