Barrett v. Forest Labs., Inc., No. 12–cv–5224 (RA).

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Writing for the Court: RONNIE ABRAMS
• Citation: 39 F.Supp.3d 407
• Parties: Megan BARRETT, et al., Plaintiffs, v. FOREST LABORATORIES, INC. and Forest Pharmaceuticals, Inc., Defendants.
• Docket Number: No. 12–cv–5224 (RA).
• Decision Date: 14 August 2014

39 F.Supp.3d 407

Megan BARRETT, et al., Plaintiffs,
v.
FOREST LABORATORIES, INC. and Forest Pharmaceuticals, Inc., Defendants.

No. 12–cv–5224 (RA).

United States District Court, S.D. New York.

Signed Aug. 14, 2014

Motion granted in part and denied in part.

[39 F.Supp.3d 417]

David W. Sanford, Katherine Leong, Katie Mueting, Lubna Aftab Alam, Thomas J. Henderson, Sanford Heisler, LLP, Washington, DC, Deborah Kristine Marcuse, Jeremy Heisler, Michael Douglas Palmer, Sanford Heisler, LLP, New York, NY, Stefanie Roemer, Sanford Heisler, LLP, San Francisco, CA, for Plaintiffs.

Gary Drew Friedman, Weil, Gotshal & Manges LLP, New York, NY, for Defendants.

OPINION AND ORDER
RONNIE ABRAMS, District Judge.

Plaintiffs are eleven current or former female employees of Defendants Forest Laboratories, Inc. and Forest Pharmaceuticals, Inc. (collectively, “Defendants,” “Forest” or “the Company”). In their Second Amended Class Action Complaint (“SAC”), Plaintiffs allege primarily that Defendants discriminated against female employees with respect to pay and promotions.

Before the Court is Defendants' motion to dismiss each of Plaintiffs' class claims and the majority of their individual claims. In the alternative to dismissing the class claims, Defendants ask the Court to narrow the putative class.

For the following reasons, Defendants' motion is granted in part and denied in part. To summarize: in addition to stating a number of individual claims, the Court concludes that Plaintiffs have plausibly alleged that Defendants have engaged in a pattern or practice of gender-based discrimination with respect to pay and promotions, and that several of Defendants' policies have a disparate impact on women. With one modification, the Court grants Defendants' request to narrow the scope of the putative class.

As do all but one other Plaintiff, Barrett identifies a “male colleague” and alleges “[u]pon information and belief” that he was paid a higher base salary than she was, “even though he did not have superior qualifications, and even though Ms. Barrett and he held jobs requiring the same skills, efforts and responsibilities, which they performed under similar working conditions.” ( Id. ¶ 30.) She alleges further that the Company's policy “of awarding merit increases as a percentage of salary” exacerbated this pay disparity. ( Id. ¶ 31.)

The thrust of Barrett's allegations is that her male manager began to mistreat her after she returned from maternity leave in February 2009—despite her excellent sales record—and continued mistreating her after she returned from another maternity leave in February 2010. Manager performance assessments, known as “Field Trip Evaluations” or “FTE's,” are a significant component of an employee's annual review score. ( Id. ¶¶ 39–41.) Barrett alleges that when she returned from maternity leave in February 2009, her manager began rating her 2.4 or 2.5 on a 5.0 scale—the lowest ratings she had received, and well below the 3.0 or higher she had received before her maternity leave began in “late 2008.” ( Id. ¶ 40.) These low scores “result [ed] in a reduction in her bonus compensation” and rendered Barrett ineligible to apply for promotions. ( Id. ¶ 41–42.)

This mistreatment allegedly worsened after Barrett returned from maternity leave in February 2010, which led her to contact a human resources representative after she was issued a disciplinary letter in July 2010. ( Id. ¶ 50.) Aside from recommending that she document her concerns, Barrett alleges, the Company did not contact her again or investigate her complaint. ( Id. ¶¶ 50–51.) In December 2010, her manager placed her on “probation,” which required her to undertake certain remedial measures, such as submitting weekly self-assessments. ( Id. ¶ 52.)

Barrett asserts that she was singled out for such treatment, alleging that she was the only member of her team placed on probation, even though “other team members had performance numbers lower or similar to hers.” ( Id. ¶ 54.) She further alleges that a male team member committed “a serious infraction,” but was not disciplined, and the manager allegedly told this individual “Don't worry, I have your back,” ( Id. ¶ 56.) Barrett remained on probation even though she continued to “achieve her sales goals” and receive praise from customers. ( Id. ¶¶ 55–58.)

[39 F.Supp.3d 419]

Despite her alleged success, Barrett was terminated in April 2011. ( Id. ¶ 59.)

2. Plaintiff Lindsey Houser

Defendants employed Houser from June 2003 to November 2010, initially as a Territory Representative and then as a Sales Representative, in several offices in Texas. ( Id. ¶ 60.) In addition to identifying male colleagues who were paid a higher base salary despite equivalent qualifications and responsibilities ( id. ¶ 63), Houser alleges that she earned certain bonus payments in the quarter before she took maternity leave, but never received those payments because of a Company policy prohibiting representatives “who are on leave for a period of more than six weeks” from collecting “bonuses distributed during the leave period.” ( Id. ¶ 84).

In her allegations, Houser also describes applying for a promotion while eight months pregnant, asserting that the questions at her interview focused almost exclusively on her pregnancy. ( Id. ¶¶ 75–76.) Despite being told by a previous supervisor that management would be “crazy” not to promote her, Houser alleges, Defendants instead promoted another employee—who also happened to be pregnant, but was not visibly so at the time of the interview. ( Id. ¶ 77.)

The SAC further asserts that Houser's manager began reducing her FTE scores after her return from maternity leave ²—despite her allegedly “strong performance”—which reduced her annual salary increase and stock options. ( Id. ¶¶ 95–96.) This manager also allegedly made comments to male colleagues about Houser's breasts ( id. ¶ 72), sent her a sexually-suggestive birthday card ( id. ¶ 79), and remarked to another employee that “he was not going to hire women anymore because they all get pregnant and go on maternity leave, like Ms. Houser” ( id. ¶ 83). After she was denied the opportunity to take a job-share position in her sales territory—although she did temporarily share a position in a different territory—Houser resigned from the Company. ( Id. ¶¶ 97–103.)

3. Plaintiff Jennifer Jones

Jones worked as a Territory Representative at the Company's Fort Worth, Texas office from January 2008 to September 27, 2010. ( Id. ¶ 104.) Like the other Plaintiffs, Jones alleges that a similarly-qualified male, performing a similar job, received a higher base salary. ( Id.¶ 106.) Unlike the nine other Plaintiffs who allege discrimination in base pay, the SAC states precisely how much Jones's male comparator was paid. ( Id. ¶ 106.)

Jones alleges that her manager engaged in overt sexual harassment at a work function one evening, which included (1) mouthing to another employee, about Jones, “You need to fuck her”; (2) remarking to a table of employees, after Jones excused herself to use the restroom, that “he would ‘fuck the shit out of her’ ” and asking why no one had done so yet; (3) walking Ms. Jones back to her condominium and then propositioning her, an overture that she rejected; and (4) “aggressively urg[ing] her not to say anything to anyone” about what happened. ( Id. ¶¶ 108–10.)

In the following months, the manager continued to confirm with Jones that she

[39 F.Supp.3d 420]

had not reported the incident. ( Id. ¶ 111.) She did not, despite learning that the individual had allegedly harassed other women and that he continued to ask team members about Jones's relationship status. ( Id. ¶¶ 111–13.) Eventually, this manager became Jones's direct supervisor, and after he told another manager that Jones “was not a valuable member of the team,” Jones finally described the harassment—first to the other manager, then in a written report to the Company's Human Resources (“HR”) department, and then in a phone call to the Company's “Compliance Hotline.” ( Id. ¶¶ 114–18.)

Over two months after the phone call to the “Compliance Hotline”—during which time Jones continued to report to her alleged harasser ( id. ¶ 120)—an HR director interviewed Jones ( id . ¶¶ 121–22). According to Jones, “the majority of the meeting” was spent discussing her work performance, and she was ultimately placed on “probation”—despite being ranked sixteenth in her region out of one hundred sales representatives. ( Id. ¶ 121.) Another individual, who also “acted as a witness on Ms. Jones' behalf during the investigation” was also interviewed and placed on “probation.” ( Id. ¶ 122.) Jones resigned from the Company five days after her interview. ( Id. ¶¶ 121, 123.)

4. Plaintiff Jennifer Seard

Seard served as a Territory and Specialty Sales Representative in the Waco, Texas region from December 2003 until April 2011. ( Id. ¶ 124.) She is the only Plaintiff who does not allege that a male comparator received a higher base salary than her for performing the same work. She does allege, however, that she was denied bonus compensation during her two maternity leaves “based on Forest's policy of denying bonuses to representatives on leave, even for commissions earned before the period of leave.” ( Id. ¶ 126.)

According to Seard, after she unsuccessfully requested a job-sharing position in March 2010, her manager “began reviewing Ms. Seard's assignments with unusual detail,” and told her that she “had no place at Forest.” ( Id. ¶¶ 138–39.) Despite ranking “first in sales” on her team and placing in the top quarter of sales representatives nationwide, her manager gave her some of the lowest FTE rankings she had received since her first year as a sales representative, resulting in lower annual salary increases. ( Id. ¶¶ 140–41.) Seard sought advice from the Company's HR department; in subsequent discussions with her manager, he would make remarks such as “Are you going to call HR again? I...