HOLMAN v. ALTANA PHARMA US INC.

• Decision Date: 22 September 2010
• Docket Number: No. A122783,A124451.,A122783
• Citation: Holman v. Altana Pharma US, Inc., 186 Cal.App.4th 262, 111 Cal.Rptr.3d 554 (Cal. App. 2010)
• Court: California Court of Appeals
• Parties: Christine HOLMAN, Plaintiff and Appellant, v. ALTANA PHARMA US, INC., Defendant and Respondent.

186 Cal.App.4th 262

111 Cal.Rptr.3d 554

Christine HOLMAN, Plaintiff and Appellant,

v.ALTANA PHARMA US, INC., Defendant and Respondent.

Nos. A122783, A124451.

Court of Appeal, First District, Division 5, California.

June 30, 2010.

Certified for Partial Publication. ^*

Review Denied Sept. 22, 2010.

COPYRIGHT MATERIAL OMITTED.

Law Offices of Lawrence A. Organ, Lawrence A. Organ, Meghan A. Corman, San Anselmo, Lilly E. Shilton, William Fernholz; Nancy Balles, Nancy J. Balles and Marjorie A. Wallace, Walnut Creek, for Plaintiff and Appellant.

Seyfarth Shaw, Patricia H. Cullison and Cassandra H. Carroll, San Francisco, for Defendant and Respondent.

BRUINIERS, J.

Christine Holman (Holman) sued her former employer, Altana Pharma US, Inc. (Altana), under the Fair Employment and Housing Act (FEHA; Gov.Code, § 12900 et seq.). ¹ She alleged causes of action for wrongful suspension in violation of public policy, age and sex discrimination, hostile work environment harassment, failure to take reasonable steps to prevent discrimination and harassment, and retaliation. Altana was granted summary adjudication of Holman's claim for hostile work environment harassment. At trial Holman voluntarily dismissed her claims for wrongful suspension in violation of public policy, age and sex discrimination, and failure to take reasonable steps to prevent discrimination and harassment. At the close of evidence, the trial court granted Altana's motion for nonsuit, pursuant to Code of Civil Procedure section 581c, with respect to her remaining retaliation claim, including her claim for punitive damages. Holman contends that that the trial court abused its discretion in excluding certain evidence and erred in granting nonsuit. Holman also appeals from the postjudgment order awarding expert witness fees to Altana as costs. We remand for reconsideration of the amount of the award of expert witness fees, but affirm in all other respects.

I. Factual and Procedural Background

[1] Viewing the record in the light most favorable to Holman, as we must, the evidence Holman presented at trial reveals the chronology of events detailed here. ² In July 1999, Holman was hired by the Savage Laboratory division of Altana, Inc. Holman first worked as a sales trainee and then as a professional sales representative. During this time, Holman was responsible for promoting prenatal vitamins and other pharmaceuticals to physicians. Between September 2000 and September 2002, Holman was supervised by Wanda Roland (Roland).

In September 2002, the Savage Laboratory division was closed. An interim performance appraisal was used to assess which employees would be moved to Altana. Roland gave Holman a “Meets Expectations” rating on this appraisal. Accordingly, Holman was moved to a sales representative position at Altana, along with other employees who were meeting performance expectations.

Altana contracted with Pharmacia (later acquired by Pfizer) to market the product Detrol LA, which is prescribed to treat overactive bladder. The goal was to develop Altana's infrastructure, name recognition, and sales force so that Altana would later have the capability to promote its own product, which was in development. Holman was assigned to market Detrol LA within the “Fremont territory.” Alexea Berchem (Berchem), Altana's district manager for the San Francisco bay region, became Holman's supervisor. Berchem reported to Lynne Hamilton Lang (Lang), Altana's regional sales director for the western region.

Pfizer paid Altana based on the number of calls Altana's sales force made to physicians. Thus, Altana's sales representatives were evaluated, in part, on their call numbers. Altana's sales representatives were given a call goal of nine calls per day. Nonetheless, market share was also used in evaluating Altana's sales representatives, as Altana was “trying to prepare [its] sales force for the new products” and Pfizer insisted on it. Accordingly, both district managers and sales representatives were paid bonuses based on their call numbers and share of market statistics. ³

Altana's sales representatives were paid a base salary and were eligible for bonus compensation, which was paid on a trimester basis (every four months). Bonus compensation could constitute between 20 and 30 percent of a sales representative's annual compensation. To qualify for a bonus, a sales representative was required to: (1) be an Altana employee on the first day of the third month of the trimester and at the time of bonus payout; (2) average at least 121 calls on “Target Prescribers” during each month of the bonus period; and (3) be “in good standing with regards to performance standards.” Once eligible, the amount of the bonus payment was determined by ranking the territory's “share of market” and “share of market change” numbers as compared to other territories within the region.

Altana's district managers prepared field contact reports (FCRs) approximately once a month, after going on a ride-along in the field with a sales representative. After an October 28, 2002 ride-along, Holman received her first FCR from Berchem. The October 28 FCR showed that her average daily calls were above the goal of nine calls per day. The FCR gave Holman a rating of “Needs Improvement” in three areas: “Approach,” “Pre-call plan/Post-call analysis,” and “Product/Competitive knowledge.” She received “Meets Expectations” ratings in eighteen other areas and “Exceeds Expectations” ratings in three areas.

In late November 2002, Berchem reported to human resources that Holman's “Meets Expectations” rating from the September interim review was still appropriate. On December 10, 2002, Berchem conducted another ride-along with Holman. The FCR that Holman received after the ride-along showed that her average daily calls were above the goal of nine calls per day. The FCR gave Holman a rating of “Needs Improvement” in three areas: “Approach,” “Pre-call plan/Post-call analysis,” and “Product/Competitive knowledge.” She received “Meets Expectations” ratings in twelve other areas and “Exceeds Expectations” ratings in nine areas. The FCR also provided: “You obviously have strong relationships with your accounts and they like you. Be sure to capitalize on those relationships and present the product information with a belief in why you are there. Stand strong and show them you are passionate about the product.”

In January 2003, ⁴ Holman received a raise, along with the rest of the Altana sales force. After a February 3 ride-along, Holman received a FCR from Berchem that observed: “Significant improvement in presentation style with more passion and relaxed demeanor and body language, and utilizing sales strategies! Great effort, [Holman]!” The February 3 FCR showed that her average daily calls were above the goal of nine calls per day. The FCR gave Holman a rating of “Needs Improvement” in two areas: “Approach” and “Interview.” She received “Meets Expectations” ratings in ten other areas and “Exceeds Expectations” ratings in twelve areas. Berchem wrote: “your accounts really like you and you have no problems with access....”

Berchem acknowledged that, in March and April, Holman was making progress and showing improvement. After a March 12 ride-along, Holman received a FCR from Berchem that observed: “You are getting better in keeping your body language open and making your point. [¶] Continue to work on your strategy from last week until you are more confident in your delivery. Work on sales strategy and sticking to one key point to get the buy-in and have a strong opening ready. Great effort!” The March 12 FCR showed that her average daily calls were above the goal of nine calls per day. The FCR gave Holman a rating of “Needs Improvement” in two areas: “Approach” and “Pre-call plan/Post-call analysis.” She received “Meets Expectations” ratings in 10 other areas and “Exceeds Expectations” ratings in 11 areas. Berchem wrote: “As usual, your relationships are strong with practitioners and office staff. Just stay focused on getting the point across sooner rather than later.”

After an April 8 ride-along, Holman received a FCR from Berchem that observed: “This field contact you had much more specific goals set up and it worked beautifully. Continue to refine your strategies until you know exactly your approach with which tools; own, grow and convert.”

The April 8 FCR showed that her average daily calls were above the goal of nine calls per day. The FCR gave Holman a rating of “Needs Improvement” in two areas: “Approach” and “Pre-call plan/Post-call analysis.” She received “ Meets Expectations” ratings in 11 other areas and “Exceeds Expectations” ratings in 11 areas. Berchem wrote: “I am very proud of your progress!” Later in April, Berchem awarded Holman a $50 gift certificate for her work on a flashcard for the Detrol LA product.

On June 5, Berchem did a ride-along with Holman in the field. At lunch, Berchem and Holman discussed a recent corporate policy presentation regarding accountability. Berchem asked if there was anything Holman wanted to discuss. Holman testified: “I told her that I had noticed some things over the previous period and since she had become my manager, and that I had initially thought maybe I was the only one observing these things, but at the Dallas meeting that there were several other reps who came up to me and made comments to me about certain men on the team getting opportunities that either they weren't made aware of or that they thought that Lisa or I should have been doing.” Holman testified that she identified the male representatives to Berchem as Greg Casey (Casey) and Matt Verga (Verga). Both Casey and Verga were under 40 years of age. Holman further testified: “I told [Berchem] there was a perception that I had observed myself and that others had confirmed that she was preferring these younger men for opportunities, and that there had been opportunities that I would have...