Gorman v. Covidien, LLC

• Decision Date: 19 November 2015
• Docket Number: 13 Civ. 6486 (KPF)
• Parties: John Gorman, Plaintiff, v. Covidien, LLC, d/b/a Covidien, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

146 F.Supp.3d 509

32 A.D. Cases 902

John Gorman, Plaintiff,

v.Covidien, LLC, d/b/a Covidien, et al., Defendants.

13 Civ. 6486 (KPF)

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

Signed November 19, 2015

Richard Javon Washington, Jr., Richard J. Washington, Attorney at Law, New York, NY, Monte Malik Chandler, The Chandler Law Firm PLLC, Hempstead, NY, for Plaintiff.

Stephanie Lauren Aranyos, Ogletree, Deakins, Nash,Smoak & Stewart, P.C., New York, NY, Theresa Donahue Egler, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Morristown, NJ, for Defendants.

OPINION AND ORDER

KATHERINE POLK FAILLA

, District Judge:

John Gorman brings claims for discrimination and retaliation under both the New York State and New York City Human Rights Laws, as well as a claim for intentional infliction of emotional distress, naming as Defendants his former employer, Covidien Sales, LLC (“Covidien”), and his former supervisor, Dale Kelly. Defendants have moved for summary judgment on all claims. For the reasons set forth in this Opinion, the Court grants Defendants' motion in part and denies it in part.

BACKGROUND¹

A. Factual Background

1. Gorman's Employment History at Covidien

Gorman spent over a decade working for Covidien, the sales branch of medical device and supplies manufacturer Covidien LP. (Def. 56.1 ¶¶ 1, 5). He was first hired as an Imaging Account Manager in August 2001, and, after his position was eliminated in November 2009 as part of a corporate restructuring, was re-hired as an Account Representative in May 2010. (Id. at ¶¶ 7, 9). Prior to the restructuring, Gorman had been formally disciplined, via a “Final Written Warning” from a Covidien Zone Vice President, for purportedly making inappropriate comments to several female co-workers. (Id. at ¶ 6).² Despite this receipt, Gorman both kept his then-current position, and was later able to re-join Covidien after that position had been eliminated.

2. Gorman's Completion of the Coaching Plan

Gorman's responsibilities as an Account Representative included meeting sales quotas, developing clinical relationships, managing expenses, forecasting sales, and presenting himself to clients in a professional manner. (Def. 56.1 ¶ 23). Though Gorman met his sales quotas, he received a Coaching Plan approved by his supervisor, Sean Stewart, and by Sales Vice President George Mullen, in May 2011 to address behavioral and performance-related deficiencies reportedly observed by Stewart. (Id. at ¶¶ 24, 25, 27-30; Pl. 56.1 ¶¶ 24, 25, 27-30 (acknowledging the imposition of the plan, but denying the conduct for which the plan was imposed)). Gorman successfully completed the Coaching Plan, which required him to submit business outlines and weekly time logs, and continued as an Account Representative until Covidien promoted him to Account Executive II in December 2012. (Def. 56.1 ¶¶ 31, 33, 37).

In April 2013, Covidien restructured its sales organization, eliminating some positions and dividing the remaining sales representatives into two categories: Territory Managers and Account Executives. (Def. 56.1 ¶ 38). As a result of this shift, on April 8, 2013, Gorman became a Territory Manager. (Id. at ¶ 40). Gorman reported to Dale Kelly, who had replaced Sean Stewart as Gorman's supervisor in October 2012. (Id. at ¶¶ 35, 40).

The duties of a Territory Manager largely tracked those of Gorman's previous position: Gorman had “primary responsibility for the customer relationships to understand and target customer consumable product needs; [and] develop and execute a sales strategy around those opportunities.” (Def. 56.1 ¶ 41). Gorman was also expected to “collaborat[e] with Region Managers (RSMs), Capital Account Executive[s], and Care Area Specialists to gather pertinent information, provide incomparable service, reach or exceed target consumable sale goals,” and develop and execute sales strategies. (Id. ). Gorman's mid-year review from the 2013 fiscal year reflects generally strong performance, though it notes that he finished the first half of the year at only 8.4% of his hardware quota. (Id. at ¶ 43).

3. Gorman's Difficulties as a Territory Manager

In May 2013, conflict between Gorman and officials at Stony Brook University Hospital (“Stony Brook”), one of Gorman's accounts, culminated in Stony Brook requesting that Gorman be removed from its account. (Gorman Dep. 154-55). Specifically, Stony Brook Materials Manager John Moscarelli complained to Kelly that Gorman had violated hospital policy by going directly to clinicians rather than first taking sales promotions to Moscarelli. (Id. at 150-55). Although Covidien informed Gorman that he was no longer allowed at Stony Brook's facility, Gorman continued to receive commissions on sales made to that account. (Id. at 267).

Kelly also received complaints about Gorman from individuals within Covidien, including Care Area Specialist Megan Desmond and Vice President of Marketing Kendall Qualls. (Def. 56.1 ¶¶ 57, 66). As a Care Area Specialist, Desmond's responsibilities included educating customers about the clinical uses of Covidien's products and working with Gorman by participating in joint calls, facilitating sales, and assisting with clinical trials. (Id. at ¶¶ 53-54). In May 2013, Desmond and Gorman attended a meeting with a group of clinicians for which Desmond felt she was wholly unprepared. (Id. at ¶ 57). After the meeting, Desmond sent an email to Kelly complaining that (i) Gorman had failed to communicate with her about the meeting; (ii) she only learned about the meeting when she received an email from the customer; and (iii) she had prepared for a meeting with two clinicians, but was then confronted with a 20-person roundtable discussion. (Aranyos Decl. Ex. V). Following Desmond's complaint, Kelly sent Gorman an email listing “Areas of Concern,” in which Kelly referenced the grievances from both Stony Brook and Desmond, and advised Gorman that he needed to improve in a number of performance and behavioral arenas. (Def. 56.1 ¶¶ 59-61; see also Pl. 56.1 ¶¶ 59-61 (acknowledging the email, but disputing the legitimacy of the complaints upon which it was based)).

Shortly after Kelly sent his “Areas of Concern” email, Kendall Qualls went on a “ride along” with Gorman to visit field sites. (Def. 56.1 ¶ 64). Thereafter, Qualls emailed both Kelly and Mullen to suggest that Gorman did not maximize their time on the visits and that he (Gorman) lacked strong relationships with his clinical customers. (Id. at ¶¶ 65-66). Qualls specifically reported that the doctor at their first appointment was not expecting Gorman; that Gorman appeared to lack any relationship or familiarity with the second hospital they visited, at which several pieces of Covidien equipment were in disrepair or needed replacing; and that Gorman seemed to lack relationships with clinicians and struggled to articulate Covidien's technology vis-à -vis that of its competitors at a third hospital. (Id. at ¶ 66). Gorman does not allege that either Desmond or Qualls had any discriminatory bias against either veterans or disabled individuals, and Qualls is himself a veteran. (Id. at ¶¶ 57, 67).

4. The Implementation of the PIP

Following Qualls's “ride-along” email, Kelly discussed Gorman's performance and behavior with Mullen and two representatives from Covidien's Human Resources Department, Brian Fink and Lisa Roe. (Def. 56.1 ¶ 68). At Kelly's suggestion, the group approved Gorman's placement on a Performance Improvement Plan (the “PIP”). (Mullen Dep. 37; Def. 56.1 ¶ 69).

The PIP went into effect on June 7, 2013, and was to last for 90 days. (Def. 56.1 ¶¶ 72-73). While it contained both sales performance and behavioral components, the PIP's primary focus was on professional behavior: Three of the four “performance objectives” dealt with professionalism and interpersonal relationships, under the headings “Developing Key Clinical Relationships,” “Communication,” and “Professional Behavior.” (Aranyos Decl. Ex. BB). In addition to providing high-level goals, the PIP detailed “Action Plans” for how Gorman would spend and account for his time, including requirements that he (i) provide forecasts and summaries of his meetings with clinical contacts; (ii) engage in a set number of meetings with “Key Decision [M]akers” at customer hospitals, spending at least three days of the week focusing on contacts in operating rooms, anesthesia, or surgery; (iii) meet set quotas for new sales opportunities and update his records accordingly; (iv) participate in weekly calls with his Care Area Specialist and Capital Account Executive; and (v) review and abide by Covidien's Travel and Expense Policy, as well as all customer hospital policies. (Id. ; Def. 56.1 ¶¶ 74-77).

5. Gorman's Allegations of Discrimination and Covidien's Response

On June 11, 2013, four days after the PIP's implementation, Gorman filed an internal discrimination complaint with Covidien's Ombudsman and reporting hotline. (Def. 56.1 ¶ 78). He alleged that Kelly had made disparaging comments about veterans at a lunch meeting with Gorman one month earlier, on May 13, 2013, and that Kelly had made further hostile comments specifically targeting Gorman's status as a disabled veteran when he presented Gorman with the PIP on June 7, 2013. (Id. ). Gorman additionally noted that during the June 7 encounter, Kelly “reeked of alcohol” and aggressively demanded that Gorman sign the PIP, which Gorman refused to do. (Id. at ¶ 85).

On the day after he made his complaint, June 12, 2013, Gorman contacted Lisa Roe and Brian Fink in Human Resources to report that he believed Kelly was stalking him. (Def. 56.1 ¶ 82). Gorman came to this conclusion based on the fact that Kelly had “checked in” on social media at a bar in Gorman's neighborhood. (Id. ). Gorman also noted that, based on his review of Kelly's social media posts, he believed Kelly to have consumed alcohol during work hours. (Id. ).

Roe initiated an investigation into Gorman's complaints on June 12, 2013 (Def. 56.1 ¶ 83),...