Aiello v. Novartis Pharmaceuticals Corporation

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMIA
BRIAN AIELLO,
Plaintiff,
Civil Action No. 08-0l30
(EGS)
NOVARTIS PHARMACEUTICALS
CORPORATION,
Defendant.
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MEMDRANDUM OPINION
Plaintiff Brian Aiello, a white male over 40 who was
formerly employed by Novartis Pharmaceuticals Corporation
(“Novartis”), claims that his employer discriminated against him
on the basis of gender and age when he was terminated in January
2007, in violation of Title VII of the Civil Rights Act of l964,
42 U.S.C. § 2000e et seq., the Age Discrimination in Employment
Act (“ADEA”),
29 U.S.C. § 621 et seq., and the District of
Columbia Human Rights Act, D.C. Code § 2-l40l.0l et seq. He also
claims that his termination violated an employment contract, and
alleges a common law breach of contract claim. Defendant has
moved for summary judgment on all of plaintiff’s claims. Upon
consideration of the motion, the response and reply thereto, the
applicable law, the entire record, and for the reasons set forth
below, the Court will GRANT defendant’s motion for summary
judgment.
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I . BACKGROU'ND
At all times relevant to this case, plaintiff was employed
by Novartis as an Area Sales Manager (“ASM”). Def.'s Statement
of Material Facts (“Def.'s Facts”) I 1; Pl.'s Statement of
Material Facts (“Pl.'s Facts”) I 44. As an ASM, plaintiff
managed a team of approximately ten sales representatives who
promoted Novartis pharmaceutical products to physicians in parts
of Pennsylvania, Delaware, Maryland, the District of Columbia,
and Virginia. Def.'s Ex. A, Deposition of Brian Aiello (“Aiello
Dep.”) 2l, 25-26, 37-4l. Plaintiff's job required him to work
personally with sales representatives on a regular basis,
including on field rides, during which he accompanied the
representative in his or her car for physician visits, and for
educational or dinner programs. Aiello Dep. 41-45, 51-52. Prior
to the events at issue in this case, plaintiff had no
disciplinary history at Novartis. Pl.’s Facts I 43. Plaintiff
was 48 years old at the time of his termination. Pl.’s Facts
I 4l.
A. The Holland Allegations
In 2004, a group of female employees filed a class action
lawsuit (“the Velez lawsuit”) against Novartis alleging sex
discrimination against the company. Amy Velez, et al. v.
Novartis Pharmaceuticals Corp., Case No. O4~9l94, Southern
~ ~ ~,
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District of New York.1 Def.'s Facts I 7. On June 3, 2005, the
Velez lawsuit was amended and plaintiff was identified by class
member Jaime Holland, a sales representative plaintiff supervised
prior to her resignation from Novartis in August 2004. Def.'s
Ex. I, Velez Second Amended Compl. In a declaration dated May
25, 2005 in connection with the Velez lawsuit, Holland alleged
that plaintiff had sexually harassed her by, inter alia,
“constantly ma[king] offensive, sexually explicit comments about
women,” including employees he supervised. Def.'s Ex. B, First
Declaration of Jaime Holland (First Holland Decl.) L 9.
Specifically, Holland alleged plaintiff “discussed a newly hired
female sales representative and described certain physical
attributes which helped her be selected for the job.” First
Holland Decl. I 9. Holland also alleged plaintiff “showed [her]
sexually offensive material on his computer” and “made sexual
jokes.” Holland Decl. l 9.
On August 25, 2005, plaintiff met with Sharon Larrison, his
supervisor, and Aaron Gelb, an attorney representing Novartis in
the Velez lawsuit. Pl.’s Facts L 55. During the meeting, Gelb
told plaintiff the company was on his side and would support him
1 The Court takes judicial notice that the parties have
reached a preliminary settlement in velez under which Novartis
will pay as much as $l52.5 million to class members and spend an
additional $22.5 million to improve its personnel policies. See
Velez, Case No. 04-9l94, Joint Motion to Preliminarily Approve
Settlement Agreement, Doc. No. 294; Order Preliminarily Approving
Settlement Agreement, Doc. No. 295.
3
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during the lawsuit. Pl.’s Facts I 56. Plaintiff admitted he had
received inappropriate images on his laptop that had been sent
from others, but said he never showed them to Holland. Pl.’s
Facts I 57. Gelb did not ask plaintiff about any of the other
sexual harassment allegations Holland had made. Pl.’s Facts I
57. Until his termination, plaintiff was never disciplined about
conduct alleged by Holland in the Velez lawsuit. Pl.’s Facts I
58.2
B. The Emerson Allegations
On June 1, 2006, Beth Emerson, an ASM who was a peer of
plaintiff's but did not work with him directly, complained to
Associate Director of Human Resources RoseAnn Schwerdt that
plaintiff had engaged in inappropriate conduct. Def.'s Ex. C,
Deposition of RoseAnn Schwerdt (“Schwerdt Dep.”) 24-26. Emerson
claimed that she was seated next to plaintiff, whom she had never
met before, at a dinner during a meeting in San Francisco in
2 In October 2005, Holland executed another declaration in
the velez matter. Holland alleged, and plaintiff admitted, that
she had seen him at a restaurant while she attended a work
related dinner and plaintiff angrily told her he would see her in
court. Def.'s Ex. B, Second Declaration of Jaime Holland (Second
Holland Decl.) II 8~9; Aiello Dep. 144 (admitting words to that
effect). Plaintiff stayed in the restaurant throughout the
evening, drinking. Second Holland Decl. I ll; Aiello Dep. l35,
l42. Eventually, while plaintiff, Ms. Holland, and her co-workers
were still in the restaurant, plaintiff shouted “Jaime Holland is
suing Novartis! Jaime Holland is suing Novartis!” Id. I l2;
Aiello Dep. l45. Novartis counsel interviewed plaintiff about
these supplemental allegations in October 2005, but the record
contains no evidence of any further action by Novartis.
Confidential Documents D0804-05, filed in Doc. No. 23 under seal.
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April 2006. Schwerdt Dep. Ex. 2. She alleged that during the
dinner plaintiff received a phone call from his wife, and then
asked Emerson if she knew what “wife” stood for. She said no,
and he responded “Washing, Ironing, F*cking, Etc.” (hereinafter
“the WIFE joke”). Schwerdt Dep. 24-26, 58-59; Schwerdt Dep. Exs.
2, 3. He then asked her what she thought of that, and what she
thought of the “F” word. Schwerdt Dep. Ex. 3. Emerson alleged
that later during the meal when the waiter was discussing the
catch of the day, plaintiff leaned over and whispered in her ear
“I'll tell you what the catch of the day is for you, baby. It’s
Brian Aiello.” Schwerdt Dep. Ex. 3. On the bus ride back from
dinner, Emerson claimed plaintiff continually turned around to
stare at her. When they arrived back at the hotel, he allegedly
asked her several times if she thought he was “cute” and then
suggested they go back to his room and clean out the minibar.
Schwerdt Dep. Ex. 3. Emerson alleged that during subsequent
meetings in May 2006 he asked her for a hug and repeatedly called
her cell phone. Schwerdt Dep. Ex. 3.
Schwerdt investigated the complaint. Def.'s Facts I l4.
She took notes of her telephone call with Emerson, received
Emerson's written notes about the incidents, and spoke with
Stephan Webb, who was then plaintiff's manager, and Larrison.
Schwerdt Dep. 24-27, 33-37, 51-52. Schwerdt and Larrison then
met with plaintiff on June 2l, 2006. Def.'s Facts I l4. During
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the meeting, Schwerdt and Larrison explained Emerson's
allegations to plaintiff. Pl.’s Facts LI 80-83. At the meeting,
plaintiff denied harassing or discriminating against Emerson. He
admitted that he may have told the WIFE joke, but said he had
likely explained that the “F” in “wife” stood for “fooling
around" rather than the obscenity Emerson had alleged. Aiello
Dep. 82. According to plaintiff, he “denied the rest of
Emerson's other allegations.” Pl.’s Facts I 83; see also Aiello
Dep. 80-9l, 98.
After discussing the complaints and his response, Larrison
talked with plaintiff about Novartis’ Code of Employee Conduct,
the need to conduct himself professionally, and Novartis’ anti-
harassment policy, which prohibited repeated, offensive or
unwelcome sexual flirtations, advances and propositions. Aiello
Dep. 92-93; Def.'s Ex. B, Sexual and Other Prohibited Harassment,
Code of Employee Conduct. Larrison told plaintiff that his
behavior was unacceptable and could not occur again or he could
be terminated. Aiello Dep. 92-93, 1l3. Although plaintiff
denied he had done anything wrong, he told Larrison and Schwerdt
that he “did not mean to offend Ms. Emerson [sic] if I did,” and
offered to apologize to her. Aiello Dep. 95. Larrison and
Schewedt agreed an apology would be appropriate. Aiello Dep. 96.
Larrison told plaintiff he would also be required to re~take a
“Mutual Respect” online training program. Def.'s Facts I 2l.
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Toward the end of the meeting, Schwerdt read a memo to plaintiff
regarding his conduct. Pl.’s Facts I 84. The purpose of the
memo was to “summarize recent inappropriate conduct, expectations
going forward, and consequences should there be any further or
related incidents.” Def.'s Ex. B, June 2l, 2006 Memo to Aiello
from Larrison (hereinafter “Conduct Memo”). The conduct memo
detailed Emerson's complaints and advised plaintiff: “should you
demonstrate any subsequent conduct that is deemed to be
inappropriate or unprofessional, you will be subject to further
disciplinary action up to and including termination of your
employment.” Conduct Memo; Aiello Dep. 113. Larrison emailed the
conduct memo to plaintiff later the same day; plaintiff
immediately deleted it without reading it. Conduct Memo; Aiello
Dep. l1l~l2. About two weeks later, plaintiff completed the
“Mutual Respect” training and also apologized to Emerson on the
phone and in person. Pl.’s Facts I 93. Emerson thanked plaintiff
for his apology. Pl.’s Facts I 93.
C. The Fulton Al1egations and Resulting Investigation
On July 6, 2006, Tracy Fulton, another former Novartis
employee who had previously worked for plaintiff, submitted a
declaration in connection with the Velez lawsuit. Def.'s Ex. B,
Declaration of Tracy Fulton (“Fulton Decl.”). Unlike Holland,
who resigned voluntarily from Novartis, Fulton had been
terminated for cause earlier in 2006, following allegations that
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she falsified her sales reports. Pl.’s Facts II 67-68;
Deposition of Stephan Webb (“Webb Dep.”) at 41-48. In Fulton's
declaration, she alleged that plaintiff made “offensive and
sexist comments” about her, other female employees at Novartis,
and women in general. Fulton’s allegations regarding plaintiff's
behavior towards her in particular included claims that plaintiff
told her she “should be home cleaning toilets,” implied to other
people that they were a couple, told her she was sexy and asked
her what sexual positions she preferred, tried to play “footsie”
with her under the table during a work lunch, and repeatedly
called her and said he would not hang up until she told him she
loved him. Fulton Decl. li 8, 9, 10, l4.
Fulton alleged that plaintiff engaged in offensive conduct
toward other women as well. For example, she alleged that he
“regularly made inappropriate sexist and racist jokes and
comments to our sales team,” “often” told the WIFE joke to her
and other members of the team, asked another female employee
about her weight, commented that he was “excited” when another
female employee was not wearing a bra, and referred to a former
female employee as “that b*tch”. Fulton Decl. TT l5, 16, 20.
Following the Fulton declaration, and at the request of
Novartis’ in-house counsel, outside counsel for Novartis began an
investigation into Fulton’s allegations. Def.'s Facts I 24;
Def.'s Ex. G, Declaration of Aaron Gelb T 4. As part of the
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investigation, counsel interviewed ten current Novartis
employees, reviewed Jaime Holland's deposition testimony in the
velez lawsuit, and searched plaintiff’s emails. Def.'s Facts I
24; Def.'s Investigation Documents Regarding Plaintiff Filed
Under Seal, Jan. l2, 2007 Memorandum Regarding Investigation of
Plaintiff DO792-802("Jan. l2, 2007 Mem."), p. l.
while the majority of Fulton’s specific claims against
plaintiff were not corroborated, some of them were. -
In addition, the investigation revealed several other
incidents or behaviors which were corroborated_
These incidents/behavior include:
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The investigation was completed on January l2, 2007. Jan. l2,
2007 Mem. p. l.
D. Plaintiff's Termination and this Lawsuit
After learning the results of the investigation, Larrison
“made the decision to terminate [plaintiff's] employment for
inappropriate conduct in violation of [Novartis'] anti-
discrimination and anti-harassment policies.” Def.'s Ex. F,
Declaration of Sharon Larrison (“Larrison Decl.") I 3. On
January 22, Michelle Bermudez, Director of Human Resources, sent
Larrison some “speaking points” for Larrison to use during the
termination meeting, Pl.’s Ex. 32, Jan. 22, 2007 E-mail from M.
Bermudez to S. Larrison (“Jan. 22, 2007 Email”). The speaking
points set forth the history of the complaints, the investigation
that was conducted, and the “themes” that the investigation
uncovered. Bermudez characterized the “themes” as:
“inappropriate sexual comments that are very pervasive,”
including the WIFE joke; comments about womens’ breasts; displays
of offensive materials on his computer; and inviting women to sit
on his lap. Jan. 22, 2007 Email. The email ends with the
following statements:
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In reviewing the earlier conduct memo [regarding
Emerson] as well as allegations raised early on from
the declarations [of Holland and Fulton], as well as
feedback from the recent interviews, [the] decision has
been made to terminate him for repeated inappropriate
comments and conduct about women.
If he questions you about “what[']s new” since the
conduct memo, you can advise him that we've learned
from this additional feedback (which has been
corr[o]borated) about the full scope of the behavior []
which we weren’t aware of at the time of the conduct
memo. Advise him we are looking in totality at
everything and not just focusing on what[']s new.
Jan. 22, 2007 Email (emphasis in original). Plaintiff's
employment with Novartis was terminated the following day. Kate
Tierney, a woman under age 40 who had been on plaintiff's sales
team in the past and had worked in pharmaceutical sales since
l998, replaced plaintiff after his termination. Pl.’s Facts L
124; Jan. l2, 2007 Mem. p. 7.
On or about June ll, 2007, plaintiff filed a complaint with
the Equal Employment Opportunity Commission and the District of
Columbia Office of Human Rights alleging age and gender
discrimination. First Am. Compl. I l9. He filed this action on
January 23, 2008. In December 2008, the Court dismissed three
counts of plaintiff's amended complaint: wrongful termination in
violation of public policy, breach of implied covenant of good
faith and fair dealing, and defamation. Minute Order of Dec. 8,
2008. The Court permitted plaintiff's age discrimination, sex
discrimination, and breach of contract claims to go forward. The
parties completed discovery, and the defendant has moved for
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summary judgment. Defendant’s motion is now ripe for
determination by the Court.
II. STANDARD OF REVIEW
Summary judgment should be granted only if the moving party
has shown that there are no genuine issues of material fact and
that the moving party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 3l7,
325 (l986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991
(D.C. Cir. 2002). “A fact is material if it ‘might affect the
outcome of the suit under the governing law,’ and a dispute about
a material fact is genuine ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”
Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The
party seeking summary judgment bears the initial burden of
demonstrating an absence of genuine issues of material fact.
Celotex, 477 U.S. at 322. In determining whether a genuine issue
of material facts exists, the Court must view all facts in the
light most favorable to the non-moving party. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (l986);
Keyes v. Dist. of Columbia, 372 F.3d 434, 436 (D.C. Cir. 2004).
The non-moving party’s opposition, however, must consist of more
than mere unsupported allegations or denials and must be
supported by affidavits or other competent evidence setting forth
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specific facts showing that there is a genuine, material issue
for trial. Fed. R. Civ. P. 56(e); see Celotex, 477 U.S. at 322.
III . ANALYSIS
Defendant moves for summary judgment on plaintiff's
discrimination claims and on his breach of contract claim. The
Court will explore them in turn.
A. Plaintiff's Discrimination Claims
1. Governing Law
Under Title VII, the ADEA, and the District of Columbia
Human Rights Act, the two essential elements of a discrimination
claim are that (i) the plaintiff suffered an adverse employment
action (ii) because of the plaintiff's sex or age. See 42 U.S.C.
§ 2000e-16(a); 29 U.S.C. § 621 et seq.; D.C. Code § 2-1401.01 et
seq.; see also Hall v. Giant Food, Inc., 175 F.3d 1074, 1077
(D.C. Cir. l999); Carpenter v. Fed'l Nat’l Mbrtgage Assoc., 165
F.3d 69, 72 (D.C. Cir. l999).
Traditionally, courts have analyzed discrimination claims
using the three-step burden shifting framework set forth in
MeDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). However,
where an employer has asserted a legitimate, non-discriminatory
reason for the action being challenged,
the district court need not - and should not - decide
whether the plaintiff actually made out a prima facie
case under McDonnell Douglas. Rather, in considering
an emp1oyer's motion for summary judgment . . . the
district court must resolve one central question: Has
the employee produced sufficient evidence for a
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reasonable jury to find that the employer's asserted
non-discriminatory reason was not the actual reason and
that the employer intentionally discriminated against
the employee on the basis of race, color, religion,
sex, or national origin?
Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C.
Cir. 2008) (citation omitted) (emphasis in original). This
framework also applies to age discrimination claims. See, e.g.,
Baloch v. Kempthorne, 550 F.3d 1191, 1197 n.2 (D.C. Cir. 2008).
A plaintiff has the burden to show that “the employer's
stated reason for the employment action was not the actual reason
(in other words, was a pretext).” Brady, 520 F.3d at 495. “A
plaintiff can carry this burden by demonstrating that a non-
discriminatory motive asserted by a defendant is false, or
otherwise ‘presenting enough evidence to allow a reasonable trier
of fact to conclude that the employer's proffered explanation is
unworthy of credence.'” Downing v. Tapella, -- F. Supp. 2d --,
No. 09-242l, 2010 WL 2989848 at *3 (D.D.C. July 27, 2010)
(citation omitted) (quoting Desmond v. Mukasey, 530 F.3d 944, 962
(D.C. Cir. 2008)).
2. Sex and Age Discrimination Claims
Defendant moves for summary judgment on the grounds that it
terminated plaintiff because “he had engaged in inappropriate
sexual conduct in the workplace” and “violated its anti-
harassment policies.” Def.'s Mem. at 1. Plaintiff responds that
this is pretext, and that the real reason defendant terminated
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him was to make itself look good in the face of mounting pressure
from the Velez lawsuit.3 After careful consideration, the Court
finds that plaintiff has failed to produce sufficient evidence to
create a genuine issue of material fact that Novartis’ asserted
non-discriminatory reason for terminating him was pretextua1.
Accordingly, the Court GRANTS summary judgment on plaintiff's
discrimination claims.
Plaintiff argues that Novartis had been aware of allegations
of misconduct “for years,” but ignored them until faced with “the
pummeling being leveled at the company by Velez.” Pl.’s Opp’n at
25. This claim is not supported by competent evidence. The
record contains no evidence that there were any allegations of
misconduct by plaintiff before Jaime Holland's claims appeared in
the Velez lawsuit in June 2005. Indeed, plaintiff himself
asserts that he had an “unblemished” record of employment at
3 In his opposition to defendant’s motion for summary
judgment, plaintiff focuses almost exclusively on his argument
that defendant is lying about its reason for terminating him. He
does, however, briefly suggest Novartis’ decision to replace him
with a female under age 40 is also evidence of discrimination.
Pl.’s Opp’n at 18. This argument is unavailing. lt is well
established that plaintiff's replacement by an individual outside
his class is insufficient to demonstrate discrimination, much
less reverse discrimination. See, e.g., Dunaway v. Int'l Bhd. Of
Teamsters, 310 F.3d 758, 767 (D.C. Cir. 2002) (plaintiff's
replacement by person under 40 does not create genuine issue of
material fact with respect to age discrimination); Hunter v.
Rice, 480 F. Supp. 2d 125, 135 (D.D.C. 2007) (explaining
additional requirement necessary to show reverse discrimination
on the basis of sex).
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Novartis until the events underlying the instant case.‘ Pl.’s
Facts I 43. Moreover, plaintiff admits the company neither
investigated the Holland allegations nor disciplined him because
of them. Pl.’s Facts ll 56-58. On the other hand, Novartis
acted quickly and decisively to investigate claims that had
nothing to do with the lawsuit: claims of sexual harassment from
a current employee, Beth Emerson, who was not involved in Velez.
When Novartis’ human resources representative RoseAnn Schwerdt
became aware of Emerson's complaints, she conducted an immediate
and thorough investigation which resulted in a disciplinary
meeting and a conduct memo placed in plaintiff's file.
Similarly, plaintiff points to no evidence that Novartis
terminated him because of the Fulton allegations in the Velez
case. To the contrary, the record is undisputed that Novartis
did not credit the Fulton allegations per se. Instead, defendant
conducted an investigation into the substance of the allegations
by reviewing plaintiff's emails and talking with ten then-current
4 In his opposition brief, plaintiff argues that defendant
had a “culture” of ignoring “the most basic of anti-
discrimination and harassment policies.” Pl.’s Opp’n at 27.
This may indeed be true. However, the only evidence that
Novartis management knew of plaintiff's behavior is plaintiff's
deposition testimony that different managers had heard him tell a
version of the WIFE joke where “F” stood for “fooling around.”
Aiello Dep. 77, 82, 235-36. Plaintiff consistently denied
engaging in any of the other forms of misconduct alleged. See
Pl.’s Opp’n at 13, l8, 24-25. The Court, therefore, declines to
accept plaintiff's argument that Novartis was previously on
notice of his alleged behavior when he consistently denied that
behavior occurred.
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employees. Plaintiff has not alleged, much less provided any
evidence, that any of the employees interviewed were involved in
the Velez lawsuit. Plaintiff further admits that he was not
terminated until six months after the Fulton declaration, after
defendant had completed its investigation and obtained evidence
corroborating several allegations regarding plaintiff's alleged
misconduct from sources unconnected to Velez. Accordingly, the
Court cannot conclude that defendant’s termination of plaintiff
was motivated by the ongoing litigation in Velez.5
Finally, as evidence of pretext, plaintiff argues that the
underlying sexual harassment never occurred. A significant
portion of his opposition brief is dedicated to attacking
Fulton’s credibility and impugning Holland's motives. Plaintiff
ignores the statements of several other current employees who
corroborate the allegations and highlights the statements of
others who said they had never witnessed plaintiff engage in
inappropriate conduct. Pl.’s Opp’n at 15-16; Jan. 12, 2007 Mem.
The Court finds plaintiff's argument about the details of
the underlying conduct largely misplaced. As this Circuit has
5 Plaintiff's related argument that Novartis terminated him
in order to “make a show” of enforcing its anti-harassment
policies for the Velez lawsuit also lacks record support. To the
contrary, plaintiff admits that he was “the only employee
terminated as a result of Velez.” Pl.’s Opp’n at l8, Plaintiff
fails to explain how a single termination of an area sales
manager would aid Novartis in defending against what he
repeatedly refers to as “the second-largest class action gender
discrimination suit in history.” Pl.’s Opp’n at 7.
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squarely held, “[t]he question is not whether the underlying
sexual harassment [] occurred; rather, the issue is whether the
employer honestly and reasonably believed that the underlying
sexual harassment {] occurred.” Brady, 520 F.3d at 496 (emphasis
in original); see also id. at 495 (“If the employer's stated
belief about the underlying facts is reasonable in light of the
evidence, [] there ordinarily is no basis for permitting a jury
to conclude that the employer is lying about the underlying
facts.”). In this case, the employer presented unrebutted
evidence that three individuals complained about plaintiff's
inappropriate conduct toward women, that it undertook two
separate investigations into the allegations, and that numerous
sources not including Holland or Fulton corroborated several
different allegations of plaintiff's misconduct. Although
plaintiff asserts that the investigation was tainted, “he did not
produce evidence sufficient to show that [Novartis'] conclusion
was dishonest or unreasonable.” Id. at 496.‘
6 In a related argument, plaintiff alleges his termination
was discriminatory because he had not been accused of
inappropriate conduct occurring subsequent to the Emerson
allegations. Plaintiff points to language in his conduct memo
which states “should you demonstrate any subsequent conduct that
is deemed to be inappropriate . . . you will be subject to
further disciplinary action up to and including termination,” and
argues that defendant’s decision to terminate him in the absence
of “subsequent conduct” demonstrates pretext, Def's Ex. B.,
Conduct Memo; Pl.’s Ex. 32, Jan. 22, 2007 Email; Pl.’s Opp’n 23-
25. while the Court understands plaintiff's frustration that he
was terminated despite a lack of “subsequent conduct,” this does
not create a reasonable inference of discrimination in this case.
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In sum, the plaintiff has failed to meet his burden to
establish that defendant’s stated reason for terminating him -
“repeated inappropriate comments and conduct” towards women, see
Pl’s Ex. 32, Jan. 22, 2007 E-mail - is “unworthy of credence.”
Desmond v. Mukasey, 530 F.3d at 962. Summary judgment on
plaintiff's discrimination claims is therefore GRANTED.
B. Plaintiff’s Contract Claim
Defendant moves for summary judgment on plaintiff's breach
of contract claim, arguing that plaintiff was an “at will”
employee who could be terminated for any reason. Plaintiff makes
two arguments in response, neither of which has merit. First, he
claims that the conduct memo he received following the Emerson
allegations constituted a written employment contract.
As this Circuit has repeatedly held, “there is a distinction
between discrimination claims . . . and the fact that a
termination may not have been fair. Consistent with the courts’
reluctance to become involved in the micromanagement of everyday
employment decisions, the question before the court is limited to
whether the plaintiff produced sufficient evidence of
discrimination, not whether he was treated fair1y." Vickers v.
Powell, 493 F.3d 186, 196 (D.C. Cir. 2007) (internal citations
and quotations omitted); see also Barbour v. Browner, 181 F.3d
l342, 1346 (D.C. Cir. l999). The Court declines to endorse
plaintiff's argument, which would effectively preclude an
employer from terminating an employee for later-discovered
conduct, no matter how egregious, so long as that conduct had
occurred before the employee had been officially warned. Such a
decision would place the Court in the role of “a super-personnel
department that reexamines an entity’s business decisions,” which
is neither authorized by Title VII nor by binding Circuit
precedent. Barbour, 181 F.3d 1346 (internal citation omitted);
see also Fishbach v. Dist. of Columbia Dep’t of Corrections, 86
F.3d l180, 1183 (D.C. Cir. 1996).
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Specifically, he references the statement “[defendant is]
confident that . . . we will not have another occurrence or
similar situation going forward . . . However, . . . should you
demonstrate any subsequent conduct that is deemed to be
inappropriate or unprofessional, you will be subject to further
disciplinary action up to and including termination of your
employment.” Def.'s Ex. B, Conduct Memo. Plaintiff argues that
this constitutes an employment contract in which Novartis
promised he would not be terminated unless he engaged in
“subsequent conduct” like that alleged by Emerson. See Pl.’s
Opp’n at 28-29; see also Pl.’s Opp’n at 28-29 (also arguing that
the same language spoken by Larrison during plaintiff's
disciplinary meeting constituted an oral contract).
Plaintiff’s argument finds no support in the law. “In the
District of Columbia, where there is no clear expression of an
intent to enter into a contract for a fixed period,” it is
presumed that the parties have entered into “the ordinary
business contract for a continuing employment, terminable at the
will of either party.” Bible Way Church of Our Lord Jesus Christ
of Apostolic Faith of Washington, D.C. v. Beards, 680 A.2d 419,
432-33 (D.C. l996) (quoting Sullivan v. Heritage Fbundation, 399
A.2d 856, 860 (D.C. 1979)). Plaintiff has offered nothing to
rebut that presumption. The conduct memo warns plaintiff that he
will face further discipline if he engages in future misconduct;
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it contains no hint that if he does not engage in future
misconduct the job is contractually his, let alone “for a fixed
period” of employment. Sullivan, 399 A.2d at 860. The Court
declines to find an employment contract existed; accordingly,
plaintiff's breach of contract claim fails.
Plaintiff's second contract claim is likewise without merit.
He appears to allege that defendant failed to train its workforce
in accordance with its written anti-harassment policies, and such
failure “was a breach of its written promises and assurances” to
plaintiff. Pl.’s Opp’n at 29. The Court does not take issue
with plaintiff's contention that Novartis’ culture was not one
which promoted respect for women. Plaintiff, however, cites no
facts or law that support his claim that defendant breached any
contract with him, nor can the Court discern any contract claim
that exists on this basis. Accordingly, the Court will GRANT
defendant’s motion for summary judgment on plaintiff's contract
claim.
IV. CONCLUSION
For the foregoing reasons, defendant’s motion for summary
judgment is GRANTED. Because this Memorandum Opinion discusses
material the parties filed under seal in accordance with the [17]
Protective Order entered by the Court in March 2009, it is
initially being filed under seal. An appropriate Order granting
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summary judgment and directing the parties to submit a redacted
opinion for public viewing accompanies this Memorandum Opinion.
Consistent with this Order, the parties shall submit a sealed
filing with the Court including their joint proposed redactions
by no later than October l4, 2010.
Signed: Emmet G. Sullivan
United States District Judge
September 30, 2010
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