Henry v. Wyeth Pharm.s Inc.

• Citation: 616 F.3d 134
• Decision Date: 04 August 2010
• Docket Number: Docket No. 08-1477-cv.
• Parties: Howard HENRY, Plaintiff-Appellant, v. WYETH PHARMACEUTICALS, INC., Walter Wardrop, Andrew Schaschl, and Michael McDermott, Defendant-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

616 F.3d 134

Howard HENRY, Plaintiff-Appellant,
v.
WYETH PHARMACEUTICALS, INC., Walter Wardrop, Andrew Schaschl, and Michael McDermott, Defendant-Appellees.

Docket No. 08-1477-cv.

United States Court of Appeals,Second Circuit.

Argued: May 29, 2009.
Decided: Aug. 4, 2010.

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Steven Anthony Morelli, Law Office of Steven A. Morelli, P.C., Carle Place, N.Y. (Eric S. Tilton, on the brief), for Plaintiff-Appellant.

Michael Delikat, Orrick, Herrington & Sutcliffe LLP, New York, N.Y. (James H. McQuade, on the brief), for Defendant-Appellees.

Before: LEVAL, POOLER, and PARKER, Circuit Judges.

LEVAL, Circuit Judge:

Plaintiff Howard Henry appeals from the adverse judgment of the United States District Court for the Southern District of New York (Conner, J.) in his suit against his former employer, defendant Wyeth Pharmaceuticals, Inc. (“Wyeth”), and former supervisors at Wyeth, following a jury verdict for defendants on his claims of racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., 42 U.S.C. § 1981, and the New York State Human Rights Law, Exec. Law § 290, et seq. Henry contends that the district court erred in granting two of defendants' motions in limine; by improperly instructing the jury as to his burden of proof; and by failing to provide counsel with a written copy of the jury charge prior to summations. We find that any error committed by the district court with respect to Henry's discrimination claims was harmless, and thus affirm the judgment of the district court insofar as it relates to those claims. We find, however, that the district court instructed the jury improperly as to the facts Henry was required to prove to prevail on his retaliation claims. Accordingly, we vacate the portion of the judgment that relates to those claims, and remand for a new trial.

BACKGROUNDI. The Underlying Case

Plaintiff-appellant Howard Henry, an African-American male, began working for American Cyanamid, Wyeth's predecessor, in 1992, as a temporary employee in its Pearl River pharmaceutical manufacturing facility. The following year, he obtained a full-time position as a Chemist. In 1998, Henry was promoted to the position of

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Scientist II, and in 2000, he was promoted again, by defendant Walter Wardrop, to Production Engineer in the Consumer Health Division. After his promotion to Production Engineer, Henry's upward progress stalled, for reasons that form the basis of this dispute.

In December 2001, Henry applied for the position of Project Engineer. Hiring manager Kevin Costello selected Cara Muscolo, a white female, for the position. Costello stated that he selected Muscolo because, based on his prior experience with her, he believed that she would perform well, and because she had significant experience, including supervisory experience, which Henry lacked. Costello stated that he was also concerned that Henry, whom he had previously supervised, had difficulty multi-tasking. Henry testified that he believed Muscolo was qualified for the position, and that he did not attribute the decision to racial discrimination at the time it was made.

Henry received a year-end performance review from his supervisor, Wardrop, in 2001. Wyeth's practice was to break performance reviews down into several categories and provide employees with written feedback and a “rating” (between a low of “one” and a high of “five”) in each category. Employees were also given composite ratings, which were intended to convey an overall impression of their performance throughout the year. Henry had received a composite rating of “three” in all but one year prior to 2000, and in 2000, the first year in which Wardrop reviewed his performance, he received a “three” again. In 2001, however, Wardrop gave Henry a composite score of “four,” and provided substantial praise in the explanatory portions of the review.

In July 2002, Howard applied for a promotion to Product Coordinator. He was interviewed for the position by Andrew Schaschl, the hiring manager, and Todd Davenport, an African-American manager. The position was awarded to Chris DeFeciani, a white male. Henry testified that DeFeciani was a “shoe-in for the position,” Trial Tr. 118, because DeFeciani had “backfilled” for the outgoing Product Coordinator-i.e., filled in while the Product Coordinator was out of the office-and because DeFeciani was close friends with Schaschl. Henry testified that, after DeFeciani was hired, Henry told Schaschl he would like to backfill for DeFeciani if the opportunity arose. He also testified that, at the time, he did not think the decision was a product of discrimination. For his part, Schaschl testified that DeFeciani was “far and above” the best candidate for the position, and that Henry lacked the experience and training to be competitive. Trial Tr. 766-67.

In October 2002, Henry's cousin, with whom he shared a close relationship, was murdered by the “D.C. Sniper.” As a result, Henry took two months off from work under the Family Medical Leave Act, 29 U.S.C. § 2601, et seq. When he returned to work, he was given his 2002 year-end performance review, on which he again received an overall rating of “four.” Henry testified that at that point, he began pressing Wardrop for advice on how to improve his rating to a “five” and how to obtain promotions.

Three months after Henry returned to work, DeFeciani went on extended medical leave, and his position became available to “backfill.” Though Henry had previously expressed an interest in backfilling the position, he testified that he did not reiterate that wish before Richard Morgan, a white male, was selected to fill in for DeFeciani. Some time later, Henry confronted Schaschl, who had been responsible for choosing DeFeciani's temporary replacement, and expressed his displeasure that

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he had not been selected. Schaschl testified that, even if Henry had made a timely request to be considered for the position, he would have selected Morgan, because in order to backfill, an employee needed the skills to “hit the ground running,” and Henry lacked the training to step immediately into the role. Trial Tr. 800.

Henry testified that his relationship with Wardrop remained strong until September 2003, when he received a written mid-year performance review. Although Wyeth encouraged all managers to give employees mid-year reviews, Henry had not previously received one from Wardrop. On the review, Henry received the equivalent of a “three” rating, and Wardrop provided more extensive criticism than he had in the past. In particular, Wardrop noted that Henry had become increasingly tardy with assignments; that he had excessive absences; that he had been spending too much time lingering in the infirmary; and that he had not been responsive to pages. Wardrop testified that, as a result of these performance issues, he no longer felt comfortable giving Henry a rating that indicated he had “exceeded expectations.” Henry vigorously disputed each of these criticisms. He testified that he believed the performance review was a response to his inquiries into promotional opportunities, and presented evidence that Joanne Rose, an HR representative at Wyeth, had instructed Wardrop to include a note about Henry's nurse's office visits on the review.

In November 2003, Henry applied for the position of Process Engineer in the Vaccine Division. The position was awarded to Angel Montanez, a Hispanic male. Kirk Rokad, the hiring manager, said that he selected Montanez based on his superior experience and education. At his deposition, Henry explicitly testified that he did not believe he was denied the Process Engineer position because of his race.

Around the same time, Wyeth's Pearl River facility underwent a massive corporate restructuring known as the Organizational Cascade. A new corporate organizational chart was created, and all employees were reassigned from the top down, with each manager picking his direct reports. As a result of the Organizational Cascade, Henry was reassigned to the position of Packaging Supervisor, and to a new manager, Derek Burt. Wardrop testified that he chose not to retain Henry in his group because he was permitted to choose only one Production Engineer, and he selected Jean Colas, another African-American male, who had consistently outperformed Henry. Because the assignment did not affect Henry's salary or grade, Wyeth considered it a lateral move. Henry, however, considered it a demotion, because the position required a lower educational degree than his current position and involved tasks that he believed would not be as relevant for future promotions.

At the meeting where Henry received news of his reassignment, he was also given his year-end performance review, on which he received a “three.” On it, Wardrop praised Henry in many areas, but noted that he was still failing to meet deadlines on a regular basis. Wardrop concluded that Henry was a “Solid Performer” overall but would “benefit from better reporting, attention to deadlines.” J.A. 511. Wardrop testified that he was also concerned that Henry had failed to make any progress on training he had been asked to complete. Henry testified that he took strong exception to his review, because he believed that his performance had remained consistent or had improved over the year-and thus he expected to receive the same “four” rating

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he had in the past. He also testified that he believed that the lower rating would make it more difficult for him to obtain promotions in the future, and that he believed it was a direct result of his pressing more aggressively for promotions.

Following his year-end review, Henry met with a series of managers to complain about his performance review and his reassignment to Packaging Supervisor. He met with...