Lupo v. Wyeth-Ayerst Laboratories

• Decision Date: 21 May 1997
• Docket Number: No. 1:96 CV 525 (TH).,1:96 CV 525 (TH).
• Citation: Lupo v. Wyeth-Ayerst Laboratories, 4 F.Supp.2d 628 (E.D. Tex. 1997)
• Parties: James Doyle LUPO v. WYETH-AYERST LABORATORIES and American Home Products Corporation.
• Court: U.S. District Court — Eastern District of Texas

4 F.Supp.2d 628

James Doyle LUPO v.WYETH-AYERST LABORATORIES and American Home Products Corporation.

No. 1:96 CV 525 (TH).

United States District Court, E.D. Texas, Beaumont Division.

May 21, 1997.

John R. Craddock, Houston, TX, for Plaintiff.

M. Carter Crow & Lawrence H. Clore, Houston, TX, for Defendants.

MEMORANDUM OPINION

HEARTFIELD, District Judge.

1.Plaintiff, James Doyle Lupo, sues defendants, Wyeth-Ayerst Laboratories (Wyeth) and American Home Products Corporation(American), for violation of Section 21.051 of the Texas Labor Code and for intentional infliction of emotional distress.

2.The court now grants defendants' motion for summary judgment on both of Lupo's claims[35].¹

Summary Judgment Standard

3."Federal Rule of Civil Procedure 56(c) provides that a grant of summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law."Pollock v. Federal Deposit Ins. Corp.,17 F.3d 798, 803(5th Cir.1994)."The mere existence of a factual dispute does not by itself preclude the granting of summary judgment.`[T]he requirement is that there be no genuine issue of material fact.'"St. Amant v. Benoit,806 F.2d 1294, 1297(5th Cir.1987)."The substantive law ... identif[ies] which facts are material."Forsyth v. Barr,19 F.3d 1527, 1533(5th Cir.), cert. denied,513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127(1994);seeTexas Manufactured Hous. Ass'n v. City of Nederland,101 F.3d 1095, 1099(5th Cir.1996)("A fact is `material' if its resolution in favor of one party might affect the outcome of the lawsuit under governing law."), petition for cert. filed,___ U.S.L.W. ___(U.S.Apr. 25, 1997)(No. 96-1707)."There is no genuine issue of material fact if the evidence is such that, drawing all reasonable inferences in favor of the nonmovant, ... a reasonable jury could not return a verdict in his [or her] favor."²Atkinson v. Denton Pub. Co.,84 F.3d 144, 148(5th Cir.1996);seeTexas Manufactured Hous. Ass'n,101 F.3d at 1099("An issue is `genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmovant party.").

5."In the `run-of-the-mill' civil case, the defendant moves for summary judgment on the ground that the evidence in the record demonstrates that it is entitled to a judgment as a matter of law — that should the case proceed to trial, the plaintiff will not sustain its burden of proof and the court will necessarily enter a verdict in its favor."International Shortstop, Inc. v. Rally's Inc.,939 F.2d 1257, 1263-64(5th Cir.1991), cert. denied,502 U.S. 1059, 112 S.Ct. 936, 117 L.Ed.2d 107(1992).To show that the evidence mandates summary judgment in its favor, the defendant either "affirmatively offer[s] evidence which undermines one of the essential elements of the plaintiff's case; or, ... simply demonstrate[s] that the evidence in the record falls short of establishing an essential element of the plaintiff's case,"<sup>3</sup>id. at 1264;seeTopalian v. Ehrman,954 F.2d 1125, 1131(5th Cir.)(party moving for summary judgment carries its burden "by informing the court of the basis for its motion, and by identifying portions of the record which highlight the absence of genuine factual issues"), cert. denied,506 U.S. 825, 113 S.Ct. 82, 121 L.Ed.2d 46(1992).When the defendant makes a properly supported motion for summary judgment, the plaintiff"must bring forward ... `significant probative evidence'" showing the existence of a genuine issue of material fact.⁴Gutterman,896 F.2d at 118;accordTexas Manufactured Hous. Ass'n,101 F.3d at 1099.It "can satisfy [this] ... burden by tendering depositions, affidavits or other competent evidence,"Topalian,954 F.2d at 1132, or "by referring to evidentiary documents already in the record,"Lavespere v. Niagara Mach. & Tool Works, Inc.,910 F.2d 167, 178(5th Cir.1990), cert. denied,510 U.S. 859, 114 S.Ct. 171, 126 L.Ed.2d 131(1993).⁵AccordInternational Shortstop,939 F.2d at 1263-64.This showing, however, "must [raise] ... more than a metaphysical doubt about the material facts,"Washington v. Armstrong World Indus., Inc.,839 F.2d 1121, 1123(5th Cir.1988), and must constitute more than a "mere scintilla of evidence,"Spiller v. Ella Smithers Geriatric Ctr.,919 F.2d 339, 343(5th Cir.1990).Moreover, the plaintiff cannot elude the defendant's properly supported summary judgment motion by presenting "conclusory allegations, improbable inferences, and unsupported speculation,"Krim v. BancTexas Group, Inc.,989 F.2d 1435, 1439(5th Cir.1993);accordGrimes v. Texas Dep't of Mental Health and Mental Retardation,102 F.3d 137, 139(5th Cir.1996)("Needless to say, unsubstantiated assertions are not competent summary judgment evidence.");Galindo v. Precision Am. Corp.,754 F.2d 1212, 1216(5th Cir.1985)("In fact, unsupported allegations or affidavits setting forth `ultimate or conclusory facts and conclusions of law' are insufficient to either support or defeat a motion for summary judgment."), or by "claim[ing] that further discovery or a trial might reveal facts [of] which [it] ... is currently unaware,"Armstrong World Indus.,839 F.2d at 1123.When the plaintiff fails to meet its evidentiary burden, entry of summary judgment for the movant results.Topalian,954 F.2d at 1131;Fields v. City of South Houston, Tex.,922 F.2d 1183, 1187(5th Cir.1991);Fontenot v. Upjohn Co.,780 F.2d 1190, 1195-96(5th Cir.1986).

Undisputed Facts

Reduction-in-Force

6.American includes a pharmaceutical products division, Wyeth.Pl.'s Resp. to Defs.'Mot. for Summ.J.[hereinafter Resp.](Ex. A (Permanent Reduction-in-Force Notice [hereinafter Notice])); see Defs.'Mot. for Summ.J.[hereinafter Mot.](Defs.' Ex. B (Aff. of Vincent Minora¶¶ 2, 3[hereinafter Minora Aff.]))(Defs.' Ex. E (Videotaped Dep. of Patricia Reddat 40[hereinafter Redd Dep.])).

7.In October, 1993, Wyeth announced its intention to undertake a nationwide internal review, known as the Organizational Effectiveness Program (OEP), to determine how to reform its operations to increase competitiveness.Doyle Lupo's Rejoinder to Def.'s Reply to Resp. to Mot. for Summ.J.[hereinafter Rejoinder] (Ex. 20(Letter from Essner of 10/29/93[hereinafter Essner Letter]);seeMinoraAff. ¶ 3; Resp.(Pl.'s Ex. H (list of OEP's goals)).It hired McKinsey & Company(McKinsey), a management consulting firm, to assist with this evaluation.MinoraAff. ¶ 2; Resp.(Ex. K (American's authorization of Wyeth's retention of McKinsey to conduct the OEP)(McKinsey's contract with Wyeth to complete the OEP)).

8.In November, 1994, American acquired American Cyanimid Corporation(American Cyanimid), which controlled Lederle Laboratories (Lederle), a pharmaceutical products distributor.MinoraAff. ¶ 2.Subsequent to this transaction, Lederle was integrated into Wyeth.MinoraAff. ¶ 3.See generally Resp.(Ex. K (list of American Cyanimid's sales personnel)).

9.As part of the OEP, McKinsey and Wyeth concluded that a permanent reduction of Wyeth's sales force was necessary.⁶MinoraAff. ¶ 3;seeMinoraAff. ¶ 11.Wyeth's absorption of Lederle apparently contributed to their reaching that determination.SeeMinoraAff. ¶ 3; Resp.(Ex. F (Letter from Mattley of 1/17/95[hereinafter Mattley Letter])).

10.Wyeth decided to eliminate 376 sale representative positions permanently.MinoraAff. ¶ 4;see Essner Letter.To effectuate this reduction-in-force (RIF), it targeted for termination those sales representatives with poor performance records.These persons were identified by examining five pieces of information for each sales representative:⁷1993 overall performance appraisal rating score (1993 rating), 1994 overall performance appraisal rating score (1994 rating),⁸ dollar amount of first 1993 salary bonus, dollar amount of second 1993 salary bonus and dollar amount of first 1994 salary bonus.⁹1993 Performance Appraisalat 3;1994 Performance Appraisalat 3.If 3 of these 5 numbers for a particular sales representative were "low," then he or she was designated for discharge.¹⁰MinoraAff. ¶¶ 4-7.This process yielded 268 names.MinoraAff. ¶ 6;see Resp.(Ex. K (computer printout of the 268 sales representatives [hereinafter Computer Printout])).Because that result fell 108 short of Wyeth's goal of 376, 6 sales representatives in disciplinary programs and 102 sales representatives with short tenure also were selected for release.MinoraAff. ¶ 8.See generally Resp.(Ex. J [hereinafter RIF List](list of 376 sales representatives subject to the RIF)).

11.Neither regional sales managers nor district sales managers were involved in determining which sales representatives to terminate to accomplish the sales force RIF.MinoraAff. ¶ 10;Redd Dep.at 105-06;seeMot. (Defs.' Ex. F (Videotaped Oral Dep. of William Bartekat 45-46, 94[hereinafter Bartek Dep.]));cf.Redd Dep.at 53(stating a lack of knowledge about why certain data provided the basis for evaluations of sales representative performance).

12.Sales representatives losing their jobs as a result of the RIF received notice of their fate on January 17, 1995.Notice;Lupo Aff.at 1; Mattley Letter.Their active employment with Wyeth ended four days later.Mattley Letter.On March 21, 1995, the relationship between Wyeth and those individuals ceased completely.Notice; Resp.(Ex. G (Lupo's Unemployment Insurance Claim Form)).

13.Following the RIF, the average age for Wyeth's sales force increased from 38.7 years to 41.98 years.Resp.(Ex. I [hereinafter Charts](Chart: Average Age — Before & After)).

Lupo

14.Lupo began working for Wyeth as a sales representative in 1984.SeeLupo Aff.at 1, 7; Resp.(Ex. C (Letter from Redd to Lupo of 1/5/94)).He was assigned a sales territory that included Beaumont, Texas.SeeBartek Dep.at 57;cf.Lupo De.at 8.

15.In 1993, Patti Redd became manager of Wyeth's regional sales office in...