Henry v. Laboratories
| Decision Date | 30 September 2015 |
| Docket Number | Case No.: 2:12-cv-841 |
| Parties | DELPHINE HENRY, Plaintiff, v. ABBOTT LABORATORIES, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION AND ORDER
In this action, plaintiff, Delphine Henry, alleges that defendant, Abbott Laboratories, failed to promote and constructively discharged her because of her race in violation of Title VII, as amended, 42 U.S.C. § 2000e-5, and in violation of Ohio Revised Code § 4112. Plaintiff also asserts a state law claim for retaliation. Plaintiff moves for sanctions for spoliation of evidence and to strike affidavits submitted by defendant in opposition to plaintiff's motion for sanctions. (Doc. 45, 51). Defendant moves for summary judgment. (Doc. 54). For the reasons that follow, the Court grants defendant's motion for summary judgment and denies plaintiff's motions.
On May 4, 2010, plaintiff filed a charge with the Ohio Civil Rights Commission ("OCRC") alleging that defendant impermissibly denied her a promotion in violation of state and federal law. In June of 2010, defendant learned about plaintiff's charge and put a litigation hold on employment documents related to her allegations. (Affidavit of Rebecca Fincher ("Fincher Affidavit"), at ¶4). Defendant responded to plaintiff's charge on July 1, 2010. The OCRCinitially found no probable cause, but upon reconsideration, found probable cause on April 28, 2011. Plaintiff apparently filed a second charge alleging retaliation on September 9, 2011.
On September 13, 2012, plaintiff filed her initial Complaint. After failing to appear at a December 6, 2012 pretrial conference and failing to comply with several Court orders, plaintiff's case was dismissed for failure to prosecute on January 16, 2013 pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Plaintiff had until February 15, 2013 to appeal that dismissal. Fed.R.App.P. 4(a)(1)(A). No appeal was filed. On April 11, 2013, defendant lifted the litigation hold and documents collected by its legal department were destroyed. (Fincher Affidavit, ¶6; Affidavit of Julie Matovich ("Matovich Affidavit"), at ¶4).
On October 29, 2013, plaintiff moved for relief from the dismissal of her case pursuant to Rule 61(b) of the Federal Rules of Civil Procedure. On January 3, 2013, the Magistrate Judge recommended that the Court grant Plaintiff that relief. The next day, defendant reinstituted a litigation hold on documents related to plaintiff's allegations. (Fincher Affidavit, ¶7). This Court ultimately adopted the Magistrate's recommendation and granted plaintiff relief from the dismissal of her case. Plaintiff was also permitted to file an Amended Complaint on April 24, 2014. In it, she alleged race discrimination in violation of Title VII and Ohio law and alleged retaliation in violation of Ohio law.
Plaintiff is an African American woman who was employed by defendant in its Consumer Relations Department from 2009 until September 29, 2011.1 The Consumer RelationsDepartment was a call center that fielded complaints from consumers and healthcare professionals about defendant's products. Complaints were classified into three categories. Level One complaints involved relatively uncomplicated issues such as complaints about product taste or dents in product packaging. Level Two complaints involved more complex issues such as complaints about product defects. Level Three complaints involved more serious "adverse events" such as products making people ill.
Consumer Relations Representative I ("Rep I") was the entry level position in the Consumer Relations Department. Rep I's handled Level One complaints, logged all calls they received in a database, and drafted letter responses to consumer inquiries. Rep I's were also expected to determine if a complaint qualified as a Level Two or Level Three complaint and to forward them to supervisors in the department. Rep I's could be promoted to a Consumer Relations Representative II ("Rep II"). Rep IIs were permitted to handle higher level complaints, including at times, Level Two and Level Three complaints. Quality Coordinators and Senior Representatives in the department fielded complaints and held additional responsibilities. Managers oversaw teams comprised of Rep I's, Rep II's, Quality Coordinators, and Senior Representatives.
The performance of Rep I's and Rep II's was monitored in several ways. Managers would randomly listen to three to five randomly selected calls handled by each Rep I or Rep II on his or her team every month. Performance during those calls would be scored and used to generate a monthly performance rating for how each Rep I and Rep II handled calls. Managers also assessed how well Rep I's and Rep II's logged complaints in the database and drafted letter responses to consumer inquiries. Those assessments were used to create monthly performance ratings for these activities as well. The monthly performance ratings were compiled annuallyand made part of each employee's annual performance review. The monthly and annual performance ratings consisted of four ratings categories: Exceeding Expectations (EE); Achieving Expectations (AE); Partially Achieving Expectations (PA); and Not Achieving Expectations (NA).
A Rep I could be promoted to Rep II if he or she possessed, amongst several things, one year of experience as a "fully functioning" Rep I. This generally meant that a Rep I had to have annual performance rating of at least AE to be considered a candidate for promotion. To be promoted, a manager would identify a list of Rep I's that he or she managed who were candidates for promotion to Rep II at the beginning of August and February of each year. After that list was of candidates was identified, "Rep II readiness surveys" would be distributed to Senior Representatives and Quality Coordinators on the same team as a Rep I who was identified as a candidate for promotion to Rep II. The surveys, also referred to as pre-assessment surveys, asked Senior Representatives and Quality Coordinators to anonymously assess a Rep I's ability to perform Rep II responsibilities. The survey results were then compiled by Senior Coordinators and provided to the Rep I's manager. A Rep I needed to attain a score of 80% - 85% in order to be eligible to move to the next promotional phase— training for the Rep II position.
In 2008, plaintiff was a Rep I on a team managed by Carol Marvin. On March 5, 2009, plaintiff received her performance evaluation for 2008. Plaintiff received an overall rating of AE for 2008. Nevertheless, plaintiff received a PA in one evaluation subcategory: "Operations, Written Correspondence - Inquiry Letters." (PAGEID# 2215). Marvin did not identify plaintiff as a candidate for promotion to Rep II in August of 2009. Accordingly, Marvin did notdistribute Rep II readiness surveys for plaintiff, plaintiff was not anonymously assessed by Senior Representatives and Quality Coordinators on her team, and plaintiff was not eligible for Rep II training.
In 2009, plaintiff remained a Rep I on a team managed by Marvin. On February 2, 2010, plaintiff received her performance evaluation for 2009. Plaintiff received another overall rating of AE for 2009. But plaintiff received a PA in one evaluation subcategory: "Competencies: Innovation." (PAGEID# 2206). Marvin met with plaintiff on February 4 and 22, 2010 to discuss plaintiff's performance evaluation for 2009. Marvin did not identify plaintiff as a candidate for promotion to Rep II at that time.
In March of 2010, plaintiff sent an email to Marvin and Marvin's supervisor, Laurie Boogard, indicating that she had been in the department for a long time and wished to be considered for a promotion to Rep II in the near future. Boogard responded that length of tenure in the department was not an indicator of which role was most suitable and indicated that Marvin would speak with plaintiff about plaintiff's development. After receiving plaintiff's email, Marvin distributed Rep II readiness surveys to Quality Coordinators and Senior Representatives on plaintiff's team. The survey results were not favorable— plaintiff did not receive a score of 80% or better. Plaintiff filed her charge with the OCRC in May of 2010 alleging that defendant impermissibly failed to promote her on the basis of her race.
Plaintiff remained a Rep I on a team managed by Marvin in 2010. At her deposition, plaintiff agreed that her "performance in 2010 was worse than it had been in previous years." (Deposition of Delphine Henry, 119:16-19, PAGEID# 573). Specifically, the Consumer Relations department implemented a new software system called Salesforce.com. Plaintiff andothers had difficulties learning that new system. Plaintiff also had at least two recorded instances where she provided incorrect information to consumers who called the department seeking information about product recalls. Plaintiff also had at least one recorded instance where a consumer became frustrated and hung up after she was unable to answer the consumer's question.
Moreover, in November of 2010, plaintiff provided a consumer who called the department to inquire about a refund with a password that allowed the consumer to access an internal database maintained by defendant for defendant's employees. The database contained confidential information including the names and addresses of other consumers entitled to a refund. After management learned that plaintiff had given the consumer access the internal database, defendant was forced to shut down all access to the database for several days. During that period, defendant created new usernames and passwords for its employees. Plaintiff was also temporarily suspended while defendant investigated the security breach. At the end of that investigation, plaintiff received a written warning. Plaintiff was also...
To continue reading
Request your trial