Juell v. Forest Pharmaceuticals, Inc.

• Decision Date: 12 September 2006
• Docket Number: No. CIV S-05-0378 FCD/GGH.,CIV S-05-0378 FCD/GGH.
• Citation: Juell v. Forest Pharmaceuticals, Inc., 456 F.Supp.2d 1141 (E.D. Cal. 2006)
• Court: U.S. District Court — Eastern District of California
• Parties: Eric Edward JUELL, Plaintiff, v. FOREST PHARMACEUTICALS, INC. and David Williams, Defendants.

456 F.Supp.2d 1141

Eric Edward JUELL, Plaintiff, v.FOREST PHARMACEUTICALS, INC. and David Williams, Defendants.

No. CIV S-05-0378 FCD/GGH.

United States District Court, E.D. California.

September 12, 2006.

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Linda Jane Sloven, Attorney at Law, Nevada City, CA, Roderick Paul Bushnell, Bushnell Caplan Fielding and Maier LLP, San Francisco, CA, for Plaintiff.

Lizbeth V. West, Weintraub Genshlea Chediak Sproul, Sacramento, CA, Randall S. Thompson, Susanne Jennings Blackwell, Blackwell, Sanders, Peper, Martin LLP, Saint Louis, MO, for Defendants.

MEMORANDUM AND ORDER

DAMRELL, District Judge.

This matter is before the court on. defendants' Forest Pharmaceuticals, Inc.("Forest") and David Williams("Williams")motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.¹PlaintiffEric Edward Juell("Juell") opposes defendants' motion.For the reasons set forth below,²defendants' motion is DENIED.

BACKGROUND³

PlaintiffEric Edward Juell was born on February 8, 1953.(JuellAff. ¶ 1).Plaintiff was hired by defendant Forest in June 1991 as a Territory Sales Representative.(UF¶ 1).Forest manufactures and markets various prescription pharmaceutical products throughout the United States.(UF¶1).After approximately five years with Forest, plaintiff was promoted to the position of Manager of Specialty Markets ("MSM").(UF¶2).As an MSM, plaintiff's primary responsibilities were to identify and develop working relationships with HMOs, to contract Forest's pharmaceutical products in a positive formulary position, and to work with Forest's sales force in the field.(JuellAff. ¶ 6).Plaintiff was also required to call on HMOs, pharmacy benefit management companies ("PBM"s), and medical groups, communicate in writing and orally with his accounts before and after calling on them, draft reports, communicate with Forest's sales force and upper management, create expense reports, coordinate programs with sales representatives that accentuated Forest's formulary position with HMOs, and work with, Forest's sales force to maximize Forest's market share with those markets where Forest had a positive formulary position.(JuellAff. ¶ 6).

Plaintiff presents evidence that his job responsibilities began to increase sometime in 2000.In early 2000, defendant Williams became plaintiff's manager.(JuellAff. ¶ 8).When plaintiff started in the job of MSM, he worked approximately forty to fifty hours per week and was responsible for about eight large accounts.(JuellAff. ¶ 9).By late 2000, he was working over sixty hours per week and was responsible for approximately 20 accounts.(JuellAff. ¶ 9).In 2001, plaintiff had twice as many lives (a number referring to an account's member enrollment) as other MSMs.(JuellAff. ¶ 9).In 2000, due to a vacant Specialty Market Representative ("SMR") position, Williams assigned plaintiff the additional responsibility of calling on medical groups, including some in Southern California.(JuellAff. ¶8).Also in 2000, the MSM responsible for all of Southern California, Marcus Shaw, was moved to a new position, and plaintiff was assigned responsibility by Williams to all Southern California HMO accounts and field sales force.(JuellAff. ¶ 11).This assignment increased his accounts from eight to twenty.⁴(JuellAff ¶ 11).As of 2001, plaintiff had responsibility for 16 divisional managers and 112 representatives.(JuellAff. ¶14).The MSM who held the neighboring territory had responsibility for 9 divisional managers and 56 representatives.(JuellAff. ¶15).Lastly, plaintiff's workload also increased due to his involvement in producing speaker programs designed to increase market share for the antidepressant drug Celexa.(JuellAff. ¶11).From April 2001 to March 2002, plaintiff was the leader in program monies utilized for speaker programs.(JuellAff. ¶ 11).In order to complete the tasks assigned, plaintiff's wife assisted him in administrative duties, often working forty hours per week.(JuellAff. ¶ 12).Further, in early 2002, SMRs were relieved of responsibility for calling on medical group accounts, and that responsibility was added to the "MSM workload.(JuellAff. ¶ 7).

In February 2001, plaintiff was promoted to the position of Senior Manager of Specialty Markets ("Senior MSM").(JuellAff. ¶ 2).In September 2001, plaintiff informed Williams that he had too many accounts and responsibility for many more divisional managers and representatives than his colleagues.(JuellAff. ¶ 14).At this time, plaintiff was spending 40% of his time interfacing with Forest sales representatives.(JuellAff. 14).Williams told plaintiff that he did not want to hear about it.(JuellAff. 1114).Plaintiff also spoke to Williams several times throughout 2001-2003 about the unrealistic work load that he had been assigned and its effect on his psychological well being.(JuellAff. ¶ 16).On June 5, 2002, plaintiff also informed Donald MacDonald, Vice-President of Managed Care Operations for Forest, of his unrealistic workload and that Williams did not provide him with any managerial support.(JuellAff. ¶ 17; Aff. of Donald MacDonald ("MacDonald Aff."), filed Aug. 11, 2006).MacDonald never spoke to plaintiff again regarding these issues.(JuellAff. ¶ 17).

Beginning in approximately late 2001 or early 2002, Williams made numerous agerelated comments to plaintiff every time they spoke.(JuellAff. ¶ 18).When Williams first made age-related comments to him, plaintiff thought he was joking.(SDF ¶ 1).However, over time, the comments became more frequent and more degrading.(JuellAff. ¶ 18).Williams made comments about plaintiffs age during account calls, in peer group settings, and over the telephone.(JuellAff. ¶ 18).On several account visits that plaintiff and Williams made together, Williams implied that there was a question as to whether plaintiff could still "get the job done" at his age and whether plaintiffs abilities were waning.(JuellAff. ¶¶ 18, 20).Specifically, plaintiff recalls Williams mentioning his age with a negative connotation during account calls to Blue Shield of California, Catalyst RX, Sierra Health Services, Integrated Pharmaceutical Services, and Sutter Health.(JuellAff. ¶ 18).

Williams would also send numerous emails to plaintiff in which plaintiff believes he made reference to plaintiffs age.(SDF 114).Williams wrote e-mails to plaintiff wherein he referred to him as "Senior,""SR.," and "Old manager of specialty markets."(SDF 115;JuellAff. ¶¶ 21-27).In one e-mail, Williams wrote: "I hope that the little old ladies that you met don't start calling you at home—maybe you should refer them onto Marc Shaw—he might be able to get them a great deal on a nursing home community."(JuellAff. ¶27).In another e-mail sent shortly after the birth of his daughter, Williams wrote: "Don't feel bad when the teacher asks if you're the grandfather."(JuellAff. ¶28).Williams also made remarks in other e-mails such as "Hope all is well with my very senior account manager (50 and still ticking),""Going for the big 15 to go with 50,""bring your cane to the next meeting," and "you are the oldest guy in the department, aren't you?."(JuellAff. ¶¶ 29-31).

In the fall of 2002, plaintiff had a telephone conversation with Williams wherein Williams told plaintiff that he was golfing with a good friend from his church who had lost his job and who had asked about employment with Forest.(SDF ¶ 6).When plaintiff asked Williams whether he was going to hire his friend, Williams responded that he was not because the man was over fifty and had lost his snap.(SDF ¶ 6).Plaintiff felt that Williams shared this with him as an indirect way of commenting on his age, as this conversation occurred shortly before plaintiffs fiftieth birthday.(SDF ¶6;JuellAff. ¶ 33).

Plaintiff spoke to Forest's Senior Director of Human Resources, Jeff Wolfe("Wolfe"), approximately five times between January 2002 and April 2003 about his inability to handle all the work that he had been assigned.(JuellAff. ¶ 36).In May 2002, plaintiff informed Wolfe that Williams was sending e-mails with comments about plaintiffs age and mentioning his age to accounts; plaintiff told Wolfe that he felt like he was the target of age discrimination.(SDF ¶¶ 12-13).Plaintiff was never contacted by any Forest Human Resources representative, manager, or any other authorized representative of Forest concerning any investigation into his complaints.(JuellAff. ¶ 36).Neither Wolfe nor anyone in Forest's Human Resources Department took any action to reduce plaintiffs workload or to investigate whether there' was merit to plaintiffs complaints regarding age discrimination.(SDF ¶ 21).Sometime after Summer 2002, Wolfe informed MacDonald that plaintiff had some concerns about communications from Williams relating to his age.(SDF ¶ 16).MacDonald thereafter spoke to Williams in general terms and Williams acknowledged that he may have said some things that were mis-perceived, but that he would be sensitive to making any kind of comments that were not work-related.(SDF ¶¶ 16-17).

In early 2003, as a result of Williams' focus on his age along with the heavy workload, plaintiff felt he could no longer perform the tasks of his job.(SDF ¶ 22).Williams' conduct made it psychologically impossible for plaintiff to continue as an MSM and to continue under the supervision of Williams.(SDF ¶ 23).Plaintiff informed Williams that be could no longer perform the tasks associated with his position, that he was psychologically and mentally stressed, and that it was impossible for him to handle the volume of work assigned to him.(SDF ¶ 24).In April 2003, plaintiff called to inform Wolfe that he was taking a voluntary demotion because he felt that he had been forced to resign from his position as Senior MSM due to his age.(JuellAff. ¶38).Plaintif...