Margaret Bach v. Centocor Ortho Biotech, Incorp

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 22, 2013*
Decided March 25, 2013
Before
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12-2029
MARGARET BACH, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 11-C-0444
CENTOCOR ORTHO BIOTECH, INC. Charles N. Clevert, Jr.,
and JOHNSON & JOHNSON, Chief Judge.
Defendants-Appellees.
ORDER
Margaret Bach, a single mother of a disabled child, sued her former employer,
Centocor Ortho Biotech, Inc., and its holding company, Johnson & Johnson, for unlawful
employment practices under federal and state law. The district court granted the
defendants’ motion to dismiss for failure to state a claim. It also denied Ms. Bach’s requests
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 12-2029 Page 2
to file an untimely response to that motion and amend her complaint. Because neither Ms.
Bach’s original nor proposed complaint states a valid claim, we affirm.
Ms. Bach alleges that while she worked for Centocor as a sales agent from 2001 until
it fired her in 2009, her managers mistreated her in three general ways. First, they asked her
to sell one of its drugs, Remicade, unlawfully. They requested, for example, that she sell
Remicade to a children’s hospital though the drug had not been approved for children.
They also told her to spread false information about Remicade. She alleged that “retaliation
ensued” after she reported these improprieties to Centocor’s Healthcare Compliance
Department. She adds that three company employees promised that Centocor would not
retaliate against her for her reports.
Ms. Bach also alleged that Centocor refused to compensate her properly. It refused
to reimburse her fully for law school tuition, paying her only an agreed-upon, partial sum.
Also, after she took approved time off to attend a court hearing about her disabled son, the
company never paid her for the additional work that she completed after hours.
Finally, Ms. Bach alleges that Centocor regularly violated its own company policies.
It refused to grant her flexible work hours, failed to guarantee her job, and evaluated her
unfairly. She relies on the company’s policies regarding performance reviews, scheduling,
and job security. These policies advise: “The Company reserves the right to modify,
suspend, change, or terminate this policy at any time. This policy does not create any
contractual rights or obligations, whether express or implied” and does not “alter the
employee’s at-will status with the company.” Ms. Bach also relies on the parent company’s
“credo,” which offers employees “a sense of security in their jobs,” assures that the
company is “mindful of ways to help our employees fulfill their family responsibilities,”
and hopes that “[e]mployees feel free to make suggestions and complaints.”
Ms. Bach sued Centocor and Johnson & Johnson in state court, asserting claims
under federal and state laws. The defendants removed the case to federal court and moved
to dismiss the suit for failure to state a claim. Two weeks after time for Ms. Bach to respond
to that motion, Ms. Bach asked for more time, explaining that other obligations prevented a
timely response. A month later, Ms. Bach replied to the defendants’s motion and also
moved to amend her complaint to add new legal theories, including a claim that the
defendants violated federal employment laws by “retaliating” against her for having a
disabled child. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the
Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.
The district court ruled on the three pending motions. It denied Ms. Bach’s request
to file a late response, observing that Ms. Bach voluntarily prioritized other obligations
No. 12-2029 Page 3
ahead of this case. The court then dismissed the complaint as legally deficient and denied
Ms. Bach’s motion to amend as futile. The court reasoned that Ms. Bach’s complaints fail to
state claims for several reasons: she concedes that she failed to file the administrative
charges required for her Title VII and ADA claims, and other claims were untimely,
implausible, lacked a private right of action, or were unsupported by the employment
policies that Ms. Bach attached to her amended complaint.
We note three preliminary matters before addressing the merits of the appeal. First,
the defendants should have brought their motion to dismiss under Rule 12(c) because it
relied on affirmative defenses, such as the administrative-filing requirement for Title VII
and ADA, and untimeliness. See Yassan v. J. P. Morgan Chase & Co., No. 12-2313, 2013 WL
717481, at * 11 (7th Cir. Feb. 28, 2013). But this procedural wrinkle does not affect our
review. The only affirmative defense we need to address on appeal is the administrative-
filing requirement, and Ms. Bach agrees to the facts underlying the defense. Second, the
motion to dismiss relied on exhibits that describe Centocor’s employment policies. But Ms.
Bach referred to them in her complaint, attached them to her amended complaint, and
argues that they are dispositive. So the court’s reliance on them was proper. See Yassan,
2013 WL 717481 at *11. Third, Ms. Bach contends that the district court should have
allowed her extra time to oppose the motion to dismiss and granted her leave to amend.
Our review of both the court’s dismissal of the original complaint and its conclusion that
the proposed amendment is futile is de novo. See Bogie v. Rosenberg, 705 F.3d 603, 608 (7th
Cir. 2013). We will consider the arguments that Ms. Bach advances here or presented in the
district court to support her original complaint and her proposed amendments;
accordingly, any challenge to the procedural rulings is obviated.
On the merits of the appeal, Ms. Bach first argues that Centocor retaliated against
her under the ADA for having a disabled child. She argues that—despite not filing
administrative charges and without specifying the nature of the retaliation, her claim can
proceed because she need not succeed on an underlying discrimination claim to assert a
retaliation claim. But whether her ADA claim is for discrimination or retaliation, Ms. Bach
still needed to file a timely administrative charge before filing suit. See Kersting v. Wal-Mart
Stores, Inc., 250 F.3d 1109, 1118 (7th Cir. 2001); Fairchild v. Forma Scientific, Inc., 147 F.3d 567,
574 (7th Cir. 1998). Accordingly this claim fails.
Ms. Bach next argues that on two occasions Centocor unlawfully refused to
compensate her. First, Ms. Bach asserts that Centocor unlawfully denied her a full tuition
reimbursement. She appears to invoke a Wisconsin statute that requires employers to pay
their employees each month for the previous month’s earnings. See WIS. STAT. § 109.03. But
she admits that she and Centocor agreed that it would pay her for only partial tuition, so
No. 12-2029 Page 4
she has waived any dispute over the amount. That leaves only a possible complaint about
timing, but Ms. Bach does not contend that Centocor failed to timely pay her the stipulated
reimbursement. So she has failed to state a claim under section 109.03. Her second wage
claim is based on the Family and Medical Leave Act, 29 U.S.C. § 2615. She maintains that
Centocor interfered with her rights under the Act by refusing her a full day’s pay when she
took the morning off to attend a court hearing for her disabled son but made up the hours
by working that evening. See 29 U.S.C. § 2615(a). But the Act provides only for unpaid leave
during regular work hours, see 29 U.S.C. § 2612(c); Franzen v. Ellis Corp., 543 F.3d 420, 428
(7th Cir. 2008). Ms. Bach’s claim for compensation for her evening work runs into the
obstacle that, according to the unrebutted evidence, the company’s paid, working hours
were 8:30 a.m. to 5:00 p.m. She cannot recover wages for time volunteered outside of
standard working hours.
Ms. Bach next maintains that she stated valid claims for breach of contract based on
Centocor’s employment policies, which, she argues, it violated by firing her and denying
her flexible hours. We disagree. Under Wisconsin law, employment is terminable at will
unless the employment terms or circumstances “clearly manifest” the parties intent to bind
each other to a different relationship. See Batteries Plus, LLC v. Mohr, 628 N.W.2d 364, 368
(Wis. 2001); Forrer v. Sears, Roebuck & Co., 153 N.W.2d 587, 589–90 (Wis. 1967); Olson v. 3M
Co., 523 N.W.2d 578, 589 (Wis. Ct. App. 1994). Although company policies and handbooks
can abrogate the at-will presumption and create other rights, see Ferraro v. Koelsch, 368
N.W.2d 666, 672 (Wis. 1985) (employee handbook); Garvey v. Buhler, 430 N.W.2d 616,
618–19 (Wis. Ct. App. 1988) (company policy), Ms. Bach has not identified a company
policy here that promises a term of employment or flexible hours. In fact, the policies that
she cites expressly disclaim any such promises and reserve to Centocor the right to change
its policies and discharge employees at will. See Helland v. Froedtert Mem’l Lutheran Hosp.,
601 N.W.2d 318, 322 (Wis. Ct. App. 1999) (rejecting contract claim based on handbook
marked subject to change); Wolf v. F&M Banks, 534 N.W.2d 877, 882–83 (Wis. Ct. App. 1995)
(rejecting contract claim based on signed “Code of Ethics” setting conduct guidelines);
Olson, 523 N.W.2d at 589–90 (rejecting contract claim based on handbook subject to
change).
Ms. Bach responds that the Johnson & Johnson “credo” establishes the contractual
right to her job. The credo expresses the parent company’s desire that employees have a
“sense of security in their jobs.” But this merely states an aspiration, not a contractual
relationship. See Krug v. Zeuske, 544 N.W.2d 618, 623 (Wis. Ct. App. 1996); Goetz v. State
Farm Mut. Auto. Ins. Co., 142 N.W.2d 804, 807 (Wis. 1966). Ms. Bach replies that other
documents might support her contract claim. But she does not allege that in any document
No. 12-2029 Page 5
the company specifically promised to contradict its written refusal to promise, as set forth in
company’s policy statements that she invoked in the district court.
Ms. Bach next contends that she stated a valid claim for wrongful discharge under
Wisconsin common law. She identified in her proposed amended complaint various federal
statutes that she contends Centocor violated by firing her, and because Centocor violated
those public policies, she concludes that her discharge was unlawful under state law. To
state a claim for wrongful discharge under the narrow, “public policy” exception to the
employment-at-will doctrine, Ms. Bach had to identify in her complaint “a fundamental
and well-defined public policy,” and allege that she was fired in order for her employer to
violate that policy. See Batteries Plus, 628 N.W.2d at 369; Brockmeyer v. Dun & Bradstreet, 335
N.W.2d 834, 840, 842 (Wis. 1983). But none of the statutes cited in her proposed amended
complaint can ground a wrongful-discharge claim because the statutes provide for their
own remedies, and when “the legislature has created a remedy for wrongful discharge, that
remedy is exclusive.” Brockmeyer, 335 N.W.2d at 842 n.17; see Larson v. City of Tomah, 532
N.W.2d 726, 729 (Wis. 1995); Repetti v. Sysco Corp., 730 N.W.2d 189, 194 (Wis. Ct. App. 2007).
Finally, Ms. Bach maintains that her proposed amended complaint states a claim for
promissory estoppel. She alleges that three company employees promised that the
defendants would protect her from retaliation for reporting legal violations. But Ms. Bach
must allege that the employees’s promises induced her to act. See Reddinger v. SENA
Severance Pay Plan, Nos. 10-2361 & 10-2362, 2013 WL 599521, at *5 (7th Cir. Feb. 19, 2013)
(applying Wisconsin law); Hoffman v. Red Owl Stores, Inc., 133 N.W.2d 267, 275 (Wis. 1965);
McLellan v. Charly, 758 N.W.2d 94, 107–08 (Wis. Ct. App. 2008). Here, Ms. Bach does not
allege that promises of protection induced her to report the violations; rather, after she
alleges that she reported the violations, she asserts that she was assured no retaliation.
We have considered Ms. Bach’s other arguments, and they do not merit further
discussion. The judgment of the district court is AFFIRMED.