Cobetto v. Wyeth Pharmaceuticals
| Decision Date | 15 October 2007 |
| Docket Number | Civil Action No. 05-1677. |
| Citation | 619 F.Supp.2d 142 |
| Parties | Bernard J. COBETTO, Plaintiff, v. WYETH PHARMACEUTICALS, Defendant. |
| Court | U.S. District Court — Western District of Pennsylvania |
Edward A. Olds, Carolyn Spicer Russ, Pittsburgh, PA, for Plaintiff.
Martha Hartle Munsch, Reed Smith, Pittsburgh, PA, for Defendant.
Before the Court for disposition are DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Document No. 37), Defendant's Memorandum of Law in Support of Motion for Summary Judgment (Document No. 39), Plaintiff's Brief in Opposition to Summary Judgment Motion (Document No. 42), Defendant's Reply Brief in Support of Motion for Summary Judgment (Document No. 46), Plaintiff's Surreply to Summary Judgment Motion (Document No. 50), and Defendant's Response to Plaintiff's Surreply Submission (Document No. 52). For the reasons that follow, Defendant's Motion for Summary Judgment will be granted.
Plaintiff Bernard J. Cobetto ("Cobetto") began his employment as a sales representative for a predecessor company to Defendant Wyeth Pharmaceuticals ("Wyeth") in 1987. (Doc. Nos. 38, p. 1, ¶ 1, 43, p. 1, ¶ 1). Wyeth's organization consists of several different business units, one of which is dedicated to the sale of vaccines. (Doc. Nos. 38, p. 1, ¶ 2, 43, p. 1, ¶ 2). At all times relevant to this case, the Vaccines Business Unit was divided into four geographic regions, each of which was supervised by an Area Business Director. Id. Cobetto worked in the Northeast Region, and his Area Business Director was Kenneth Dennison ("Dennison"). Id. For most of his career, Cobetto was the Territory Manager for the P1400 District of the Northeast Region. (Doc. Nos. 38, p. 2, ¶ 3, 43, p. 1, ¶ 3).
At one time, Morgan Berger ("Berger") was Cobetto's District Manager. (Doc. Nos. 38, p. 2, ¶ 4, 43, p. 1, ¶ 4). In June 2001, Berger was replaced by Kimberly Bencker ("Bencker"). Id. Bencker became the Area Development Manager around the middle of 2003. Id. In September 2003, John Scott ("Scott") became Cobetto's immediate supervisor. Id. As a Territory Manager, Cobetto's duties included contacting physicians in his geographical region for the purpose of "detailing" (i.e., promoting) the Vaccines Business Unit's products. (Doc. Nos. 38, p. 2, ¶ 5, 43, p. 1, ¶ 5).
In order to ensure compliance with all relevant laws, rules and regulations, Wyeth has adopted Policy 511. (Doc. Nos. 38, p. 2, ¶ 6, 43, p. 1, ¶ 6). Policy 511 covers a variety of marketing and sales practices, prescribing rules governing the use of promotional materials. (Doc. Nos. 38, pp. 2-3, ¶ 7, 43, p. 1, ¶ 7). Wyeth has a Copy Clearance Committee ("CCC"), which includes several legal, regulatory and global affairs employees. (Doc. Nos.38, p. 3, ¶ 8, 43, p. 1, ¶ 8). Section III.E of Policy 511, in pertinent part, provides:
All promotional materials must be approved by a Wyeth CCC prior to use. Under no circumstances are field sales personnel permitted to create or alter promotional materials. Any item that has a product or company name on it must be approved in accordance with the CCC review process prior to distribution to customers.
(Doc. Nos. 38, p. 3, ¶ 7, 43, p. 1, ¶ 7). Policy 511 also includes an "Overview" section, which provides:
In some respects, this policy is more restrictive than what the law or industry and professional standards require. Nevertheless, Policy 511 is our policy, and you are expected to follow it. Any deviations from this policy may result in disciplinary action, including termination of employment.
(Doc. Nos. 38, p. 3, ¶ 9, 43, p. 1, ¶ 9). Policy 511 was periodically distributed to Wyeth's sales representatives, and periodic training about it was provided as well. (Doc. No. 38, p. 3, ¶ 10, 43, p. 1, ¶ 10). In June 2001, Cobetto received a letter from the President of Wyeth's Vaccines Division discussing the importance of Policy 511. (Doc. Nos. 38, p. 3, ¶ 11, 43, p. 1, ¶ 11). In December 2002, he received a letter from Wyeth's Vice President and Chief Counsel emphasizing the importance placed on Policy 511 by Wyeth. (Doc. Nos. 38, p. 4, ¶ 12, 43, p. 1, ¶ 12). No promotional materials were distributed to Wyeth's Territory Managers for distribution to physicians without first being approved by a CCC. (Doc. Nos. 38, p. 4, ¶ 13, 43, p. 1, ¶ 13).
On May 23, 2002, Dennison and Bencker met with Cobetto to discuss his activities with customers. (Doc. Nos. 38, p. 4, ¶ 14, 43, pp. 1-2, ¶ 14). One day later, Bencker sent Cobetto a memorandum entitled "Appropriate Communications." Id. The memorandum directed Cobetto as follows:
• Conduct your promotional and service activities only with those customers assigned to you. Specifically, you are not to conduct business with West Virginia State immunization officials. Refer any inquiries from them or on their behalf through our Specialty Account Manager and District Manager.
• Constrain all discussions you have as an employee of Wyeth to company approved POA communications. It is not appropriate to express personal opinions about customers or the company during the conduct of your selling activities. Unapproved discussion of confidential or unauthorized complaints to customers which place a false and unfavorable light on the company could lead to disciplinary action, including discharge.
• Do not distribute unauthorized literature, e.g. newspaper articles at company meetings to your colleagues. Follow your District Manager's guidance and use only approved POA material.
* * * You are expected to conduct your work behaviors and communications in accordance with the company values and policy with respect to colleagues and customers. You are directed to review the Territory Manager responsibilities, Job Profile, Code of Conduct and Corporate Values brochure and ensure that you understand and follow these important guides. Failure to do so in a fully cooperative manner may result in disciplinary action, including discharge.
(Doc. Nos. 38, pp. 4-5, ¶¶ 15-16, 43, p. 2, ¶¶ 15-16). In October 2002, Bencker reviewed Cobetto's expense reports for the previous month. (Doc. Nos. 38, p. 5, ¶ 17, 43, pp. 2-3, ¶ 17). She discovered that Cobetto had been making copies of Vaccine Information Sheets ("VIS") published by the Center for Disease Control ("CDC") for distribution to physicians. Id. Cobetto was warned about copying VIS sheets, or any other non-approved promotional materials, because it was in violation of Wyeth's policies. (Doc. Nos. 38, p. 5, ¶ 19, 43, p. 3, ¶ 19).
On November 25, 2002, Cobetto was notified that he was placed "On Notice" because of his job performance. (Doc. Nos. 38, p. 6, ¶ 20, 43, p. 3, ¶ 20). In a memorandum, Bencker warned him again that he should not copy non-approved material or engage in inappropriate communications. Id. Cobetto received a copy of Policy 511 in December 2002, along with a letter about its importance. (Doc. Nos. 38, p. 6, ¶ 21, 43, p. 3, ¶ 21). On March 21, 2003, Bencker removed Cobetto from "On Notice" status. (Doc. Nos. 38, p. 6, ¶ 22, 43, p. 3, ¶ 22). Nonetheless, in a letter to Cobetto, Bencker warned that she would recommend that he be terminated if he violated any Wyeth policies or procedures within the following twelve months. Id.
During the middle of September 2003, Scott became Cobetto's District Manager. (Doc. Nos. 38, p. 6, ¶ 23, 43, p. 3, ¶ 23). Scott held a meeting with the sales representatives for District P1400 on September 16, 2003, at which Policy 511 was discussed. (Doc. Nos. 38, pp. 6-7, ¶¶ 24-25, 43, p. 3, ¶¶ 24-25). Three days later, Cobetto signed a form acknowledging that he understood Policy 511, and that he was obligated to contact his supervisor if he had any questions about it. (Doc. Nos. 38, p. 7, ¶ 26, 43, p. 3, ¶ 26). Shortly thereafter, Scott sent a voicemail message to the sales representatives stating that they should not have any unapproved materials in their vehicles. (Doc. Nos. 38, p. 7, ¶ 27, 43, p. 3, ¶ 27). Cobetto was very familiar with Policy 511, received periodic training concerning Wyeth's expectations, and received occasional voicemail messages indicating that sales representatives were only permitted to distribute materials which had been approved by a CCC. (Doc. Nos. 38, p. 8, ¶ 29, 43, p. 4, ¶ 29).
Scott received a letter from Dr. Kelly R. Nelson dated October 7, 2003. (Doc. Nos. 38, pp. 8-9, ¶ 30, 43, p. 4, ¶ 30). The letter stated, in pertinent part, as follows:
Mr. Cobetto has been selling us flu mist. I have some very serious issues with Mr. Cobetto and as his supervisor felt it was appropriate to share them with you. Mr. Cobetto made a detail call to my practice Medbrook Medical Associates on October 6, 2003. As he was leaving he took it upon himself to hang flu mist signs throughout my building including two signs on the front door of my office. This was done without asking permission of myself or any of my associates. That type of behavior is totally inappropriate, cannot and will not be tolerated within this practice. I discussed that with Mr. Cobetto and at this stage I feel the best solution is that he not be a sales representative in this practice.
(Doc. No. 40-4, p. 17). Scott rode with Cobetto in the field from October 14-15, 2003. (Doc. Nos. 38, p. 9, ¶ 31, 43, p. 4, ¶ 31). Scott and Cobetto spoke about Dr. Nelson's complaint. (Doc. Nos. 38, p. 9, ¶ 32, 43, p. 4, ¶ 32). During this conversation, Cobetto admitted that he had distributed a VIS sheet to Dr. Nelson's head nurse. Id. The document had apparently not been approved by a CCC. Id. The subject of the VIS sheet was a Wyeth product known as Flu Mist. (Doc. Nos. 38, p. 9, ¶ 33, 43, p. 4, ¶ 33). Cobetto apparently admitted that he had distributed the same document to other medical offices. Id. While accompanying Cobetto on a call to the West Virginia University Pediatric Clinic, Scott...
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...to an inference of discrimination are of evidentiary value, not whether they fit into a mechanical formula." Cobetto v. Wyeth Pharm., 619 F. Supp. 2d 142, 153 n.3 (W.D. Pa. 2007) (emphasis in original) (citation omitted). A prima facie case "raises an inference of discrimination"sufficient ......
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...the adverse employment action occurred under circumstances giving rise to an inference of illegal discrimination. Cobetto v. Wyeth Pharms., 619 F.Supp.2d 142, 153 (W.D.Pa.2007). The specific elements of a prima facie case generally "depend on the facts of the particular case" before the cou......
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...to an inference of discrimination are of evidentiary value, not whether they fit into a mechanical formula.” Cobetto v. Wyeth Pharm., 619 F.Supp.2d 142, 153 n. 3 (W.D.Pa.2007) (emphasis in original) (citation omitted). A prima facie case “raises an inference of discrimination” sufficient to......