Hutt v. Abbvie Prods. LLC

• Citation: 757 F.3d 687
• Decision Date: 07 July 2014
• Docket Number: No. 13–1481.,13–1481.
• Parties: Julia HUTT, Plaintiff–Appellant, v. ABBVIE PRODUCTS LLC, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

757 F.3d 687

Julia HUTT, Plaintiff–Appellant,
v.
ABBVIE PRODUCTS LLC, Defendant–Appellee.

No. 13–1481.

United States Court of Appeals,
Seventh Circuit.

Argued Dec. 4, 2013.
Decided July 7, 2014.

[757 F.3d 688]

Donald F. Foley, Tony H. Abbott, Marie D. Castetter, Foley & Abbott, Indianapolis, IN, for Plaintiff–Appellant.

Before FLAUM, EASTERBROOK, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

Plaintiff–Appellant Julia Hutt appeals the district court's grant of summary judgment for Defendant–Appellee Solvay Pharmaceuticals ¹ on her Age Discrimination in Employment Act (“ADEA”) retaliation and discrimination claims, and her state law claim asserting a violation of the Indiana Wage Payment Statute. We affirm the judgment of the district court.

[757 F.3d 689]

I

Hutt joined Solvay Pharmaceuticals as a sales representative in January 2001. She worked until 2007 with a supervisor who had recruited her to Solvay from a different company. Despite earning satisfactory ratings in most categories, the supervisor repeatedly informed Hutt that she needed to improve her punctuality and consistency in submitting internal reports. For example, her 2004 performance evaluation notes that Hutt's “lack of organization and administration problems are becoming the major focus of [her] performance.” When her first supervisor retired, Brian Lozen was appointed the new Indianapolis sales district manager by Jeff Westfall, himself a newly-appointed regional manager. Hutt's lawsuit concerns three years of work under Lozen and Westfall—from 2008 to 2011—so we detail the course of her employment over those years. Because we are reviewing the grant of summary judgment against Hutt, we construe the facts in the light most favorable to her. See Andrews v. CBOCS West, Inc., 743 F.3d 230, 232 (7th Cir.2014).

A. HR Call and Informal Warning

One of Lozen's first acts as the district manager was to ask for his employees' dates of birth. It appears that from the early days of Lozen's tenure, he and Hutt had friction. When several types of new software for internal accounting of expense reports and time off were introduced, Hutt requested training assistance for the software, but did not receive a response from Lozen. She did not complete those reports. On March 19, 2008—three months into Lozen's tenure—John, the Plaintiff–Appellant's husband, called Solvay's human resources department to voice his concerns about the Plaintiff–Appellant's stress and depression. He stated that part of the problem was the way that Lozen and Westfall treated her. Two days after John's HR call, Lozen phoned Hutt at her home and spoke at some length—38 minutes—to strongly express his displeasure with her complaint to HR. A week after the call to HR, Lozen and Westfall placed Hutt on an Informal Warning Status and issued a Performance Improvement Plan (“PIP”). The PIP required Hutt to finish her uncompleted administrative tasks within the next five days, by March 31, when the company's national sales meeting was scheduled to start. Lozen approved a computer trainer to help Hutt with the new software the same day Hutt was placed on warning status. Hutt completed some, but not all, of her incomplete tasks by the time the national sales meeting began.

B. 2008 National Sales Meeting and Formal Warning

By all accounts, the 2008 national sales meeting was eventful. At least twice, Lozen forcibly grabbed Hutt's arm to stop her from leaving a room. Hutt also states that five or seven drunken male employees harassed and groped her, including one man who touched her face and leg, and burned her skirt with his cigarette, though she did not report this incident. Solvay counters that Hutt behaved inappropriately at the national sales meeting. At some point, Hutt locked a colleague out on a hotel patio as a practical joke. Two sales representatives informed Lozen that Hutt had stated that Lozen and Westfall had engaged in a homosexual relationship, that Hutt planned to get Lozen fired and sue Solvay to make money, and that she was soliciting collaboration from her colleagues to assist in her efforts. Unrelated to the national meeting, several other employees complained to Westfall and Lozen about Hutt's unprofessional and inappropriate behavior. Lozen received emails in which a sister company's sales representatives alleged Hutt was providing too many samples

[757 F.3d 690]

to doctors, arriving late to lunches or cancelling appointments, scheduling appointments with physicians under the names of the other company's sales representatives, and making unprofessional statements to customers.

On April 28, 2008, Westfall and Lozen placed Hutt on a Formal Record of Warning and another PIP. They stated that Hutt had still not complied with all of the requirements of the March PIP because several reports were still uncompleted, and that this highlighted her administrative deficiencies. They also cited her unprofessional conduct, her disruptive behavior at the Orlando conference, and her inappropriate behavior towards the sister company's employees as reasons for her formal warning. The PIP required Hutt to submit her expenses and out-of-territory time on a set schedule. Sales representatives on formal or final written warning are ineligible for bonus compensation, according to Solvay's incentive compensation general handbook.

Hutt took a medical leave one week after being placed on formal warning; she was on leave for seven weeks, through July 28. In response, Solvay extended the expiration date of Hutt's warning to September 18, 2008, to ensure she served the full term of her formal warning.

C. Final Warning and Discipline of Craig King

When Hutt returned from leave, further trouble ensued: Solvay claims that Hutt cancelled numerous “field contacts,” during which she was to be evaluated for her sales performance. Hutt claims that her cancellations were for medical reasons, and that Lozen also cancelled on her. Ultimately, Hutt was placed on Final Warning Status in October, scheduled to last until December 19, 2008, for failing to comply with the requirements of the April PIP. The Final Warning required Hutt to complete a series of field contacts with Lozen, Westfall, and another district manager.

Craig King, a fifty-eight year old Solvay employee, was also placed on formal warning in June, about a month after Hutt had been placed on formal warning. He was the only other representative, out of the ten representatives in Indianapolis, to be placed on warning status. On the day Hutt was placed on final warning, King was also placed on final warning. The written final warnings were substantially similar, with portions of King's warning cut and pasted into Hutt's final warning. And both King and Hutt received overall ratings of “Does Not Meet Expectations” in every category for their 2008 performance evaluations.

In February 2009, Hutt filed a complaint with the EEOC alleging age discrimination and retaliation. In March, both King's and Hutt's ratings were revised to “Partially Meets Expectations” as the result of an instruction from HR to correct an administrative error in the ratings calculation. At a May 2009 sales meeting, Westfall angrily confronted Hutt about her February EEOC charges and demanded that she and her attorney fly to Atlanta to discuss the charges with him. In June 2009, King was terminated from Solvay, but Hutt's employment continued.

In April 2010, Hutt was informed that she was retroactively being removed from final warning, effective as of December 11, 2009. By that time, she had been under a warning status for seven consecutive quarters, and had thus been ineligible for incentive pay and bonuses for those months.

D. Alleged Favoritism towards Mike Netterville

Hutt also alleges that beginning in 2010, Lozen began to show favoritism towards Mike Netterville, another sales representative in Hutt's sales territory. He was

[757 F.3d 691]

provided with an email list of new physician prospects that was not provided to Hutt; he ended 2010 with a lower sales rank in the region than Hutt, but received public recognition and a bonus that Hutt did not, in part because Hutt's performance evaluation by Westfall stated that her performance was unacceptable. In 2011, the company began ranking Hutt and Netterville as if they were one sales unit, even though other sales representatives were ranked individually. The duo ended the year 2011 ranked third in the region for sales, and Netterville again earned recognition and compensation as a top sales representative, but Hutt did not. Again, the reason she did not earn the recognition is linked to her poor performance review: Lozen claims he was unable to rate Hutt's overall performance because she cancelled on numerous field contacts with management during 2011. Hutt states that she participated in one field contact with Doug Zoeller, and that she was forced to cancel other field contacts for health reasons, the death of her...