Barrett v. Forest Labs., Inc.

• Decision Date: 14 August 2014
• Docket Number: No. 12–cv–5224 RA.,12–cv–5224 RA.
• Citation: 39 F.Supp.3d 407
• Parties: Megan BARRETT, et al., Plaintiffs, v. FOREST LABORATORIES, INC. and Forest Pharmaceuticals, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

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.

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.

BACKGROUND

The Court draws the following facts from the SAC, all of which it assumes to be true for purposes of this motion. See, e.g., Fahs Constr. Grp., Inc. v. Gray, 725 F.3d 289, 290 (2d Cir.2013).

A. Defendants

Defendant Forest Laboratories, Inc. is “a multi-national corporation engaged in the business of developing, manufacturing, and marketing pharmaceutical products.” (SAC ¶ 22.) Its wholly-owned subsidiary, Defendant Forest Pharmaceuticals, Inc., is responsible for the “manufacture, distribution, and sales of prescription medicine” for its parent company. (Id. ¶ 23.) Both entities are incorporated in Delaware; Forest Laboratories is headquartered in New York and Forest Pharmaceuticals has eight offices in the state. (Id. ¶¶ 22–23.)

B. Plaintiffs

Although many of Plaintiffs' claims are similar—in that all allege some form of gender-based discrimination—the Court details briefly the circumstances surrounding each Plaintiffs employment as alleged in the 126–page SAC.

1. Plaintiff Megan Barrett

Defendants hired Barrett in January 2004 as a Territory Representative.¹ (Id. ¶ 25.) During the period at issue in the SAC, she worked in Scranton, Pennsylvania region until she was terminated on April 26, 2011. (Id. )

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.)

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 leave² —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 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 Plaintif...