Guyton v. Novo Nordisk, Inc.

• Decision Date: 16 December 2015
• Docket Number: CASE NO. CV 15–00009 MMM (AGRx)
• Citation: 151 F.Supp.3d 1057
• Court: U.S. District Court — Central District of California
• Parties: Andrew Guyton, Plaintiff, v. Novo Nordisk, Inc., Defendant.

151 F.Supp.3d 1057

Andrew Guyton, Plaintiff,

v.Novo Nordisk, Inc., Defendant.

CASE NO. CV 15–00009 MMM (AGRx)

United States District Court, C.D. California.

Signed December 16, 2015

Alvin L. Pittman, Alvin L. Pittman Law Offices, Los Angeles, CA, for Plaintiff.

Erica C. Parks, Lauren Marie Kulpa, Max C. Fischer, Sidley Austin LLP, Los Angeles, CA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

MARGARET M. MORROW, UNITED STATES DISTRICT JUDGE

On September 5, 2014, Andrew Guyton sued Novo Nordisk, Inc. (“Novo Nordisk”) and various fictitious defendants, alleging claims of race and age discrimination, as well as retaliation, under California's Fair Employment and Housing Act, Government Code § 12900 et seq. (“FEHA”); he also pled a claim for wrongful discharge in violation of public policy.¹ Novo Nordisk was served on December 5, 2014,² and timely removed the action to federal court on January 2, 2015, invoking the court's diversity jurisdiction.³

On November 16, 2015, Novo Nordisk moved for summary judgment.⁴ Guyton opposes the motion.⁵

I. FACTUAL BACKGROUND

A. Novo Nordisk and Its Relevant Policies

Novo Nordisk is a pharmaceutical company that develops, markets, and sells drugs designed to treat patients suffering from Type I and Type II diabetes.⁶ As described by one of Novo Nordisk's managers, Jill Sutton, Novo Nordisk's sales professionals and sales managers are organized into regions, which in turn are divided up sales districts. The sales districts are divided into sales territories.⁷ Regions are overseen by “regional sales directors,” while sale districts are overseen by “district managers.”⁸ Field sales professionals—who are responsible for marketing and selling products to health care professionals (“HCPs”)—are assigned to a particular sales territory.⁹ Within Novo Nordisk, field sales professionals are referred to as Diabetes Care Specialists (“DCSs”).¹⁰

In marketing and selling products to HCPs, DCSs regularly make certain expenditures for the benefit of HCPs; these include buying them meals and gifts.¹¹ Partly because of this, pharmaceutical companies operating in the United States are subject to certain laws that restrict their access to and interactions with HCPs. One of these is an “anti-kickback law,” which requires that pharmaceutical companies trace and publicly disclose their expenditures associated with HCP interactions.¹² Novo Nordisk asserts that it is committed to complying with these regulations,¹³ and identifies two handbooks (a 2011 “U.S.Code of Business Conduct” and a 2013 “Business Ethics Policy”) that are given to Novo Nordisk employees. These handbooks reference relevant laws and summarize thirteen different laws, regulations, and administrative guidelines.¹⁴

Because of the laws and regulations that govern its sales efforts, Novo Nordisk has adopted written policies that place limits on the manner in which DCSs may interact with HCPs. One of these policies requires that DCSs limit the frequency, amount, and type of expenditures they make in visiting HCPs, both to comply with relevant regulations and to avoid the appearance of impropriety.¹⁵ The policies also require that DCSs record detailed information concerning each expenditure made, including the amount and type of expenditure and the name of all individuals—both HCPs and Novo Nordisk employees—present at each meal or other activity related to the expenditure; these records are publicly disclosed.¹⁶ Additionally, Novo Nordisk policy mandates that DCSs enter their field sale expenses on a bi-weekly schedule.¹⁷ It also requires that DCSs record a log of each sales call they make to HCPs; this allows management to match recorded expenditures with recorded calls to help ensure accuracy.¹⁸ Guyton does not dispute that Novo Nordisk has enacted these written policies; he asserts, however, that Novo Nordisk is not genuinely committed to regulatory compliance, that management places “blind emphasis on selling,” and that it encourages DCSs to engage in sales practices that violate the law and its written policies.¹⁹

B. Guyton's Employment and Disciplinary Issues

Novo Nordisk hired Guyton as a DCS in March 2007.²⁰ During his approximately seven year tenure at the company, Guyton failed on certain occasions to comply with several of Novo Nordisk's policies.²¹ Guyton's call logs from January 2012 through May 2013 reflect numerous instances in which a sales call was not logged the day the call was made, as required by policy.²² In August 2012 alone, for example, Guyton logged more than forty sales calls late; ten of these were entered at least two weeks late.²³ Between October 2012 and the first half of November 2012, Guyton logged more than 100 sales calls at least two weeks late.²⁴ Between March 6 and May 24, 2013, Guyton logged more than seventy-five calls late; approximately thirty were entered at least a week late.²⁵ In addition to logging calls late, Guyton also failed to comply with Novo Nordisk's policy requiring that DCSs record sales expenses on a bi-weekly basis. On April 9, 2012, for example, Guyton entered more than thirty field sales expenditures that he had made over forty-five days earlier.²⁶ Likewise, on July 19, 2012, Guyton entered more than twelve field sales expenditures, all of which he had incurred at least three months earlier.²⁷ In October and November 2012, Guyton's expense reports reflect at least five sales expenditures that Guyton had incurred at least thirty days earlier.²⁸ During this period, no other employee reporting to Guyton's supervisor, Sutton, consistently fell behind in logging calls and recording expenses.²⁹

In November 2012, Guyton was placed on an “action plan”—a probationary form of discipline at Novo Nordisk.³⁰ Deanna Canepa, a regional field director who supervised the Southern California district while Sutton was on maternity leave, asserts that Guyton was placed on an action plan “as a result of his continued failure to abide by [Novo Nordisk's] express policies.”³¹ Guyton does not dispute that he was placed on a disciplinary action plan; he contends, however, that this was not because he had failed to adhere to Novo Nordisk policies, and that his lack of compliance “is a fact gathered retroactively in an effort to support [Novo Nordisk's] discriminatory and retaliatory actions.”³² Nonetheless, the copy of the action plan Guyton received identified two bases for the disciplinary action: his failure to log calls during the work hours the calls were made, and his failure to file expense reports within five days of the end of each bi-weekly period.³³ Guyton testified at his deposition that he understood that the reasons he was placed on an action plan were his failure to record telephone calls to physicians in a timely fashion and his failure to submit timely expense reports.³⁴ After Guyton was placed on an action plan, his compliance with Novo Nordisk's policies began to improve; he was taken off the plan in December 2012.³⁵

Beginning in March 2013, however, Guyton's compliance with the logging of calls policy worsened. Call log records proffered by Novo Nordisk indicate that between March and May 24, 2013, Guyton entered more than seventy-five sales calls late, including over thirty that were entered at least a week after the call took place.³⁶ Guyton does not dispute the accuracy of the logs or the fact that he continued to enter sales calls late.³⁷ On May 29, 2013, Guyton received a written warning from Sutton, which placed him on a “Performance Improvement Plan.”³⁸ The document cites, inter alia, Guyton's failure to “record[ ] [calls] at the time the call is made” as a basis for the warning.³⁹

C. Guyton's Application for the Regional Support Manager Position

In July 2012, Novo Nordisk sought to hire a regional support manager for the Southern California region.⁴⁰ Stephen Adkins was an associate director at the time who was responsible for interviewing and hiring for the position.⁴¹ Among other qualifications, Adkins expected, as a “threshold requirement,” that applicants would have a clear understanding of what the support manager position entailed.⁴² Guyton applied, but was not hired for the position. The parties dispute the reason why Guyton was not hired; this dispute is discussed infra .

In July 2012—the same month Guyton was interviewed for the regional support manager position—Adkins interviewed two other candidates.⁴³ One was a Hispanic man under the age of 40; the other was a Caucasian woman whose age the parties dispute.⁴⁴ Adkins did not offer the position to either of these candidates.⁴⁵ In October 2012, two additional candidates applied for the position and were interviewed by Adkins.⁴⁶ One was Caucasian and under the age of forty; the other, Marcio Orozco, was Hispanic and under the age of forty.⁴⁷ Orozco was ultimately hired as the regional support manager.⁴⁸

D. Guyton's Unsuccessful Transfer Requests

On December 2, 2012, Guyton wrote an email to Canepa in which he requested a transfer to the Downey territory.⁴⁹ According to the email exchange proffered by Novo Nordisk, Canepa immediately forwarded Guyton's email to other Novo Nordisk managers asking for their input on the request; she noted that Guyton was currently on an action plan.⁵⁰ In response, Rodney Carr, who was at that point a district business manager, stated that he was “not comfortable and would not like to transfer a representative who is currently on an action plan into [his] open territory.”⁵¹ According to several Novo Nordisk managers, this is consistent with Novo Nordisk's policy of not considering an employee's application for an open position—including a transfer—if the employee is being formally disciplined at the time; this includes having been placed on an action plan.⁵² Guyton does not appear to dispute the existence of this policy.⁵³

In either March or May 2013, Guyton contacted Carr to request a transfer to an open sales position in the West Hollywood territory.⁵⁴ In May 2013, Carr...