Williams v. Bristol-Myers Squibb Co.

• Decision Date: 26 June 1996
• Docket Number: BRISTOL-MYERS,No. 95-3649,95-3649
• Parties: 70 Fair Empl.Prac.Cas. (BNA) 1639, 68 Empl. Prac. Dec. P 44,095, 65 USLW 2012 Michael N. WILLIAMS, Plaintiff-Appellant, v.SQUIBB COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 270

85 F.3d 270

70 Fair Empl.Prac.Cas. (BNA) 1639,

68 Empl. Prac. Dec. P 44,095, 65 USLW 2012

Michael N. WILLIAMS, Plaintiff-Appellant, v. BRISTOL-MYERS SQUIBB COMPANY, Defendant-Appellee.

No. 95-3649.

United States Court of Appeals,

Seventh Circuit.

Argued April 17, 1996.

Decided May 29, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied June 26, 1996.

Dennis M. White, Edward A. Corcoran, Brennan, Steil, Basting & MacDougall, Madison, WI, for Plaintiff-Appellant.

James R. Clark, Anita M. Sorensen, Foley & Lardner, Madison, WI, for Defendant-Appellee.

Before POSNER, Chief Judge, and CUMMINGS and COFFEY, Circuit Judges.

POSNER, Chief Judge.

Michael Williams brought suit under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., against his former employer Bristol-Myers Squibb, the pharmaceutical manufacturer. He charged Bristol-Myers both with discriminating against him on account of his age (late 40s when the acts of alleged discrimination took place) and with retaliating against him for filing charges of discrimination with the EEOC and for giving a deposition in an age discrimination suit brought by a coworker. 29 U.S.C. § 623(d). The district judge granted summary judgment for the defendant after a thorough combing of the evidence of discrimination and retaliation obtained by Williams in pretrial discovery. That evidence, construed as favorably to Williams as reason and the record permit (the proper approach in evaluating a grant of summary judgment), can be summarized as follows:

Williams had worked for many years for the defendant and one of its predecessor companies, E.R. Squibb, in southern Wisconsin as a "detail man," calling on physicians and trying to persuade them to prescribe drugs manufactured by his employer. The trouble started in the late 1980s when James Dicks, Williams's supervisor, fired another salesperson, Trudy Lantow. She filed an age discrimination suit in which Williams was deposed. Shortly before he was disposed Dicks told him that he would be accountable for everything in it, a comment that Williams interpreted as a threat. Nevertheless Williams testified in his deposition in Lantow's case that Dicks was rough on the older sales reps and had told Williams that young people could be hired to do Williams's job for a lot less pay. The deposition was given in 1990, and Dicks, in his annual review of Williams's performance, wrote that "Mike has not been understanding, considerate or supportive of management in 1990." Dicks gave him a high rating in 1991 but a much lower rating and a much smaller raise the following year, and placed the only other sales rep who testified in Lantow's case on a disciplinary "performance improvement program." Williams complained in a phone call to a superior of Dicks that the company was not being fair to some of the older sales reps. Dicks was heard to say he was not pleased about the phone call.

Late the same year (1992), Bristol-Myers decided to reorganize its sales force and reduce the number of salespersons. With the aid of a consulting firm it redrew territorial boundaries and fired a large number of sales reps in the Squibb division. Williams was not fired. His territory was split up but he was given a similar territory, promoting similar drugs to mostly the same doctors whom he had called on for Squibb, but drugs manufactured by the defendant's Mead Johnson division. He protested the transfer, complaining that it would take time for him to build up to the same sales level that he had reached in his previous job; and indeed his commission income, which in his last year at Squibb had amounted to 10.7 percent of his total earnings, fell precipitately in 1993. One of the defendant's sales directors said to Williams, "So, you're kicked out of one company and now you're going to get kicked out of another one, cause trouble in another one," and asked him why he didn't retire since he had lots of money. A regional sales manager at Mead Johnson was told by his counterpart at Squibb that Williams was a "management challenge."

John Voss, Williams's new supervisor (corresponding to Dicks at Squibb), wrote of Williams: "Older rep. Set in his ways. Works, but does things differently. Be a long process to change things." Voss put Williams into a "district coaching program." This required Williams to make special weekly reports and special written sales presentations, even though he had had only a short time to familiarize himself with his new job and it was customary not to put a salesman into such a program until he had been in his new job for at least eight months. Williams was told in writing that "failure to show improvement at any time during the program or in the immediate months after the program may lead to further disciplinary action" (emphasis added), implying, contrary to the defendant's characterization, that the "coaching" program was disciplinary in nature.

In August of 1993 Williams filed a charge with the EEOC, complaining that his transfer to the Mead Johnson division had been due to his age (47). And in October he amended the charge to add that his employer had retaliated against him for his having assisted Lantow with her age-discrimination suit. He was fired in January of the following year, ostensibly for reasons unrelated to his age or performance or to his assistance to Lantow. Federal law requires a maker of prescription drugs to have a samples control program designed to prevent its salesmen, who frequently give free samples to the physicians they call on, from distributing prescription drugs outside authorized channels. And the manufacturers have their own interest in making sure their salesmen don't steal samples either for their own consumption or for resale. One of the requirements of Bristol-Myers' code of conduct, designed to implement the samples control program, is that the receipt of a sample be acknowledged on a card signed by the physician whose name appears on the card. Pursuant to this policy, a salesman who wants to leave a sample with a physician writes the physician's name on a card, the physician signs it, and the salesman takes it back to the company, which has a file of physicians' signatures that it can use to verify the signature on the card. The salesman does not have to witness the physician's signature, however. He can give the card to the nurse and ask her to obtain the physician's signature and return the card to him. And one physician in a group practice can sign for the whole practice.

The company's code of conduct provides that "any employee who is found to have committed a serious violation [of the code] or multiple violations will be subject to termination at the sole discretion of the Company." Examples of serious violations are given, including "falsification of any Company document." The code explains that "falsification ... includes, but is not limited to ... knowingly accepting a signature on a Call Form or Service Order Form of anyone other than a licensed medical practitioner, or reporting a visit which has not been made."

As part of a routine review of samples cards, Voss found two cards for a Dr. Tim Donovan which Williams had submitted. The cards had the same date as well as name but the signatures were different. One was Donovan's; no one knows whose the other was. Voss also discovered that Williams had given a card with Dr. Jane Fossum's name on it to a partner of Fossum's, who in Williams's presence had signed the card "J. Fossum, M.D." and had assured Williams that this was okay. On the basis of these two incidents Williams was fired, although there is no suggestion that any samples were misapplied. So far as appears, Dr. Donovan and Dr. Fossum duly received the samples recorded on their cards; only someone other than Donovan--possibly...