Jacklyn v. Schering-Plough Healthcare Products Sales Corp.

• Decision Date: 24 May 1999
• Docket Number: No. 98-1335,SCHERING-PLOUGH,98-1335
• Citation: 176 F.3d 921
• Parties: Carol A. JACKLYN; Roger Jacklyn, Plaintiffs-Appellants, v.HEALTHCARE PRODUCTS SALES CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 921

176 F.3d 921

Carol A. JACKLYN; Roger Jacklyn, Plaintiffs-Appellants, v. SCHERING-PLOUGH HEALTHCARE PRODUCTS SALES CORPORATION,

Defendant-Appellee.

No. 98-1335.

United States Court of Appeals, Sixth Circuit.

Argued April 20, 1999.

Decided May 24, 1999.

Connie S. McNealy (argued and briefed), Powers, Chapman, DeAgostino, Meyers & Milia, Troy, MI, for Plaintiffs-Appellants.

Thomas M.J. Hathaway (argued and briefed), Brady Hathaway, Detroit, MI, for Defendant-Appellee.

Before: MERRITT, GUY, and DAUGHTREY, Circuit Judges.

OPINION

RALPH B. GUY, Jr., Circuit Judge.

Plaintiff, Carol A. Jacklyn, appeals from entry of summary judgment in favor of her former employer, Schering-Plough Healthcare Products Sales Corporation (Schering-Plough), with respect to her claims of sex discrimination and retaliation brought pursuant to Michigan's Elliott-Larsen Civil Rights Act, Mich. Comp. Laws Ann. §§ 37.2202(1)(a) and 37.2701(a). ¹ Plaintiff argues that the district court erred in finding certain statements were inadmissible and, consequently, that she had not shown direct evidence of sex discrimination. Plaintiff also argues that it was error to find she had not produced circumstantial evidence sufficient to establish a prima facie case of either sex discrimination or retaliation for filing charges with the EEOC. After a review of the record and the arguments presented on appeal, we are convinced no error occurred and affirm.

I.

Plaintiff began working for Schering-Plough in 1984 as a key account manager (KAM), marketing and selling its products to major retail accounts such as Meijer's, F & M Distributors, Perry Drugs, and Arbor Drugs. Plaintiff reported to Larry Grewe from 1984 until a reorganization in 1990. During that time, plaintiff received high evaluations and several performance-related awards. The early 1990s brought mergers and consolidations in the retail drug industry and changes at Schering-Plough as well. Defendant expected its KAMs to be more of a product category manager and an expert consultant to their accounts with more goal-setting and preplanning emphasis. Plaintiff testified that the consolidations and loss of independent drugstores meant that the chains accounted for a larger share of sales, so each purchasing decision became more important.

Through the course of several reorganizations at Schering-Plough in the early 1990s, plaintiff's direct supervisor changed several times. Joseph Drake, a district manager, was her supervisor in 1990 and 1991, and again between early 1992 and July 1993. Reginald Lyons was plaintiff's district manager from July 1993 until he left the company in February 1994.

Plaintiff attributes the start of her problems to the arrival of Dean Erlandson as defendant's central regional manager. ² In September 1992, plaintiff received an overall "very good" evaluation from Drake, with a "needs improvement" ranking for analytical skills.

In November 1992, plaintiff and Erlandson met and discussed both the issue of her increased work load and defendant's changing expectations for KAMs. Erlandson's memorandum of the meeting expressly indicated that those expectations included implementing a "team concept in selling" and sharing expertise with the central regional team, i.e., assisting in the development and training of others. Erlandson clearly stated "[t]hese expectations are not optional. They are required to build our business, develop our personnel and allow our company to meet the changing demands of the business environment." Erlandson also expressed disappointment with what he perceived to be plaintiff's resistance to changes in her job responsibilities.

Drake reported to Erlandson in writing that his follow-up meeting with plaintiff in January 1993 had been "positive and productive." Drake echoed the changing job responsibilities and the need for team effort in both sales and training, and indicated that plaintiff agreed they would work together. Nonetheless, plaintiff also asked to discuss with Erlandson his comments about her "resistance to change" in his earlier memorandum. After Erlandson talked with plaintiff at the end of January, he prepared another memorandum setting forth the main issues discussed and noting that plaintiff said she was uncomfortable with his "edict" concerning the changing job responsibilities.

In May 1993, Drake wrote to plaintiff indicating disappointment that she had not involved him in "pitching" new products to F & M and Arbor Drugs and emphasizing the importance of the concept of team selling. Drake prepared a performance appraisal in June 1993, before being replaced by Reginald Lyons, which gave an overall evaluation of "good" with areas needing improvement. On January 13, 1994, about six months later, Lyons gave plaintiff an overall evaluation of "needs improvement" and specifically identified problems with her performance. On January 24, 1994, Erlandson presented a development plan, which he and Lyons had prepared, outlining actions to be taken by plaintiff and deadlines for their completion. Some of those dates were adjusted at plaintiff's request.

On January 20, plaintiff complained to Brian Bradley in human resources that she felt Erlandson had forced Drake and Lyons to raise issues about her performance because she was a woman. Bradley contacted Drake, Lyons, and Erlandson about the complaint and later advised plaintiff she should focus on improving her performance. In the meantime, plaintiff filed an EEOC charge on January 28, 1994, alleging that her performance was being scrutinized because of her sex and her age. ³

Plaintiff complained that after she brought the EEOC charge, she was required to complete a work assignment from home while on approved medical leave. Specifically, plaintiff was working on a project with Mike Jones, director of trade relations, preparing for a presentation to F & M. On February 2, 1994, Jones requested additional information for an upcoming meeting with F & M. On that same day, plaintiff underwent out-patient surgery. The next day, Erlandson advised plaintiff of Jones' request and she worked all weekend completing her part of the presentation because it had to be at Jones' office the following Monday. Plaintiff also complained that she was denied reimbursement for computer expenses which previously had been approved. Plaintiff filed separate EEOC charges concerning this alleged retaliation on March 25 and April 11, 1994.

In early April 1994, plaintiff was required to travel to Chicago to conduct price checks of products in stores, which she objected to as a duplication of someone else's work on accounts not belonging to her. Plaintiff returned home on April 5, completely distraught. On April 6, her psychologist, Dr. Barbara McIntyre, reported to defendant that plaintiff could not return to work and provided a diagnosis of Adjustment Disorder with mixed emotional features. Plaintiff was off work with full pay pending a decision on her workers' compensation claim. After five months, plaintiff's short-term disability benefits were reduced to 60 percent of her pay, she was provided the paperwork to apply for long-term disability benefits, and she was advised that her job protection would end after six months of disability leave. Plaintiff also was advised that if she was released to work after her job protection expired, defendant would look for a comparable position in her geographic area for one month, but if no position was found her employment would be terminated. ⁴

In March 1995, almost a year after plaintiff took leave and about five months after her job protection had expired, plaintiff's position in Detroit was eliminated. Plaintiff was so advised at the end of March, when defendant rejected an expense report from plaintiff and asked that she return the company car and travel letter drafts. Plaintiff was released to work as of August 8, 1995, but defendant did not receive the release until October 3, 1995. Defendant advised plaintiff that no positions were open, but indicated that it would consider her for comparable positions for one month from the date her release was actually received. At the end of that time, a position as a KAM in the central region, based in Columbus, Ohio, became available and was offered to plaintiff. Plaintiff did not accept the position and her employment was terminated effective December 8, 1995, more than 18 months after she first went on leave.

Plaintiffs filed suit in state court, defendant removed the case to federal court, and after the close of discovery defendant filed a motion for summary judgment. The district court heard oral argument and granted defendant's motion with respect to all of the claims in a thorough written opinion. The court subsequently denied plaintiffs' motion for reconsideration. This appeal followed.

II.

We review de novo the district court's grant of summary judgment. See Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir.1997). In accordance with Fed.R.Civ.P. 56(c), summary judgment is appropriate when there are no issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the court must view the factual evidence in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party, however, may not rest on its pleadings, but must come forward with evidence from which a rational trier of fact could find in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A. Sex Discrimination

Plaintiff alleges she was subjected to disparate treatment because of her sex in an effort orchestrated by Erlandson to force her to resign or be terminated. Such a claim of intentional discrimination may be established by either proffering direct evidence of discrimination, or relying on...