Ebersole v. Novo Nordisk, Inc., Case No. 1:11-cv-25 SNLJ
| Decision Date | 24 April 2013 |
| Docket Number | Case No. 1:11-cv-25 SNLJ |
| Parties | AUBREE EBERSOLE, Plaintiff, v. NOVO NORDISK, INC., et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
Plaintiff filed this lawsuit against her former employer Novo Nordisk, Inc. ("Novo") and supervisor Murty Sitarama alleging violations of the Family and Medical Leave Act ("FMLA") and Americans with Disabilities Act ("ADA"). Count I is for violations of the FMLA against both Novo and Sitarama, and Counts II and III are for violations of the ADA against Novo. Defendants have filed for summary judgment. The matter has been fully briefed and is now ripe for disposition. Also pending before the Court are defendants' Motion to Exclude the Expert Report and Testimony of Dr. Allen Self (#42) and Motion to Strike the Untimely Fourth Report of Dr. Allen Self (#56).
The parties, for the most part, agree on the pertinent facts. Plaintiff worked as a sales representative for Novo, which is a pharmaceutical company that manufacturers and distributes medications that treat diabetes patients. Sales representatives are assigned geographic territories within which they make "sales calls" to promote Novo products. A sales call is defined as a face-to-face meeting with a health care provider during which the sales representative presents one or more product attributes and requests that the health care provider prescribe a product.Novo has express policies and procedures for recording the "sales calls" which its sales representatives make to health care providers. The specific requirements are necessary both for regulatory purposes and to ensure accountability for sales representatives, who generally work without supervision. Novo maintains that it has a "zero tolerance policy" for call falsification, and if Novo determines that a sales representative reports a call that does not satisfy the "call" definition, the sales representative may be terminated. (On the other hand, plaintiff disputes that Novo truly has a "zero tolerance policy," and plaintiff further points out that the supposed policy is not written anywhere.)
Plaintiff was diagnosed with rheumatoid arthritis ("RA") when she was a child, and she requires treatment with medication to keep her symptoms under control. She began working for Novo in 2007. Her territory was southern, mostly-rural Missouri with two other sales representatives — Jake Martin and Lance LaFont. In late 2008, she requested and was permitted to take FMLA leave for six weeks, from January 21 to March 5, 2009, to receive treatment for her RA. When she left work in January, her supervisor was Joseph Reichard, but when she returned, Reichard had been terminated; defendant Murty Sitarama became her supervisor in April 2009. Plaintiff returned to work with no restrictions and never requested medical leave again.
Plaintiff met defendant Sitarama in April 2009. On their first "ride-along," plaintiff says that Sitarama made plaintiff's health condition the focus of their conversation. He told her he was aware of her medical condition and her medical leave and asked about her medications. Plaintiff says Sitarama said that his boss, the regional manager, wanted to know whether it was the "sick rep" (plaintiff) or the "other rep" (plaintiff's co-sales-representative) who was more effective. Plaintiff also says that, in July, Sitarama told her she should not take any vacationleave that year, and that plaintiff found his instruction to be intimidating. On the other hand, plaintiff subsequently requested three days of vacation time in August, and Sitarama approved the request.
Meanwhile, sometime in April 2009, Sitarama found out that sales representative Jake Martin may have falsified a call by recording a visit to a Dr. Boda in Houston, Missouri on April 2, 2009. Dr. Boda had in fact relocated to a new practice in Joplin, Missouri. Sitarama launched an investigation and determined that Martin had falsified a call to Dr. Boda by recording a call on Dr. Boda after he had moved his practice to Joplin. In investigating sales calls made to Dr. Boda, Sitarama also determined that, in September and October 2008, plaintiff had recorded three calls on Dr. Boda in Houston after he no longer practiced there.
Plaintiff admits that she recorded calls on Dr. Boda without actually meeting Dr. Boda face-to-face. She explains that her former supervisor, Joseph Reichard, told her she should record the calls. In his deposition, Reichard explained that he "may have" told her to do that because if she traveled a long distance to see a doctor, and the doctor did not show up, but she spoke with staff instead, he may have said to log it. Reichard, however, readily acknowledged that it would have been violation of company policy to do so. Plaintiff recorded three such calls with Dr. Boda because she says she spoke with his nurse practitioner. Then, plaintiff's partner, Lance LaFont, told plaintiff not to record the calls until she got the nurse practitioner added to Novo's list of approved providers. At that point, plaintiff continued to meet with the nurse practitioner, but she stopped recording the calls.
Novo terminated both plaintiff and Martin's employment on August 11, 2009 for call falsification. That same year, Novo similarly terminated six other representatives in plaintiff's region for falsifying call reports, and dozens more sales representatives across the country wereterminated for falsely recording calls. Plaintiff claims that Novo actually terminated her because she took FMLA leave and because of her medical condition.
Pursuant to Rule 56(c), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that "there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law." Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467 (1962). The burden is on the moving party. Mt. Pleasant, 838 F.2d at 273. After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the nonmoving party bears the burden of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
In ruling on a motion for summary judgment, the court must review the facts in a light most favorable to the party opposing the motion and give that party the benefit of any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir. 1983). The court is required to resolve all conflicts of evidence in favor of the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976). Notably, the Eighth Circuit has recently articulated that "[t]here is no 'discrimination case exception' to the application of summary judgment, which is a useful pretrial tool to determine whether any case, including one alleging discrimination, merits a trial." Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc). With these principles in mind, the Court turns to the discussion.
Plaintiff claims that (Count I) defendants violated the FMLA by harassing and terminating her for taking medical leave, (Count II) Novo violated the ADA by harassing and terminating her for her disability, and (Counts II and III) Novo violated the ADA by refusing to accommodate plaintiff's disability. Defendants contend that plaintiff's claims are unsupported and that they are entitled to summary judgment on all three Counts.
Plaintiff has brought an FMLA retaliation claim against defendants, as she "alleges that the employer discriminated against [her] for exercising [her] FMLA rights." Chappell v. The Bilco Co., 675 F.3d 1110, 1115 (8th Cir. 2012).
First, plaintiff contends that she has submitted direct evidence of discrimination in that (1) Sitarama and his supervisor, Chris Connell, asked about her medical issues, (2) she has shown that Sitarama warned plaintiff not to take any additional leave. A remark by a decisionmaker is direct evidence of discrimination only if it shows "a specific link between a discriminatory bias and the adverse employment action, sufficient to support a finding by a reasonable fact-finder that the bias motivated the action." Torgerson, 643 F.3d at 1045-46. "Such evidence must be 'strong' and must 'clearly point[] to the presence of an illegal motive' for the adverse action." Bone v. G4S Youth Services, LLC, 686 F.3d 948, 953 (8th Cir. 2012) (quoting Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004)).
Defendants assert that, with respect to Sitarama and Connell's questions about her medical issues, their comments do not rise to the level of "direct evidence" of discrimination because they evince nothing more than curiosity about an employee's absence. The Court agrees.Reichard testified that his conversations with Connell were limited, and they did not reflect anything aside from natural human curiosity. Sitarama's ride-along conversation with plaintiff — particularly in the context of two pharmaceutical representatives on a long drive in the country — is the same. In or out of context, Sitarama and Connell's questions about the nature of plaintiff's medical diagnosis and treatment do not point to the presence of an illegal motive. Their comments and questions were facially neutral.
As for Sitarama's July 2009 warning that plaintiff should not take any additional leave, defendants maintain that his statement (which they concede for purposes of summary judgment only) did not relate to medical leave...
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