Owens v. Circassia Pharm., Inc.

• Decision Date: 13 May 2022
• Docket Number: 21-10760
• Parties: Grace OWENS, Plaintiff—Appellant, v. CIRCASSIA PHARMACEUTICALS, INCORPORATED, Defendant—Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

33 F.4th 814

Grace OWENS, Plaintiff—Appellant,

v.CIRCASSIA PHARMACEUTICALS, INCORPORATED, Defendant—Appellee.

No. 21-10760

United States Court of Appeals, Fifth Circuit.

FILED May 13, 2022

Brian Paul Sanford, Elizabeth J. Sanford, Sanford Firm, Dallas, TX, for Plaintiff-Appellant.

Kimberly Summer Moore, Laura E. Calhoun, Attorney, Clark Hill, P.L.C., Frisco, TX, for Defendant-Appellee.

Before Willett, Engelhardt, and Wilson, Circuit Judges.

Kurt D. Engelhardt, Circuit Judge:

This case turns on what circumstantial evidence of pretext a plaintiff in an employment-discrimination case must present to survive summary judgment under the "unworthy of credence" standard set forth in Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).¹ The plaintiff, Grace Owens, alleges that her former employer, Circassia Pharmaceuticals ("Circassia"), fired her for discriminatory and retaliatory reasons. The district court granted summary judgment for Circassia, holding that Owens had failed to create a genuine dispute of material fact as to pretext. Owens presents substantial evidence that could lead a reasonable trier of fact to conclude that Circassia's justification for her termination is false. But she presents next to no evidence that Circassia was motivated in any way by discrimination or retaliation. We therefore AFFIRM.

I

A. Factual Background

Owens, an Asian woman, worked for a medical company named Aerocrine starting in 2010. She was promoted to Regional Sales Manager ("RSM") in 2013. In 2015, Circassia acquired Aerocrine and kept Owens on as RSM. While initially supervised by David Acheson, a white man and a Senior Vice President, Circassia later hired Scott Casey, another white man, as Area Sales Director and Owens' immediate supervisor. Circassia sold NIOX, a medical device, and Tudorza, a pharmaceutical product.

Both Acheson and Casey conducted performance reviews of Owens. Three reviews are relevant here: the 2016 year-end review, the 2017 mid-year review, and the 2017 year-end review. Common themes emerge from each. In each review Owens was rated a 3 out of 5 overall, or a "Valuable Contribution" under Circassia's metrics. Likewise, each review flags Owens' "team development" as an area that needed improvement.

The 2016 year-end review identified multiple flaws. First, by doing "one off business calls," Owens was "position[ing] herself more as a ‘super rep’ than a manager" and causing her team to "rely on [her] to save them all the time." Second, Owens was not putting enough effort into development and needed to "observe, coach, and regularly develop" her team more. Third, Owens was not spending enough time on field visits and her field reports were subpar. The bottom line was that Owens had strong "business acumen and drive for results," but that strength became a weakness when it interfered with developing her subordinates into independent salespeople who could succeed "not always with [Owens'] direct involvement/actions."

The 2017 mid-year report noted no improvement. Specifically, Owens "continue[d] to take on much more of the workload than [wa]s required ... sacrificing the development of [her] people." Owens' continued "drive for results" and "sole[ ] focus[ ] on the business" got in the way of "develop[ing] and hold[ing] [her] people accountable." Ditto for the year-end review. In addition to repeating the deficiencies mentioned in the mid-year report, the year-end report noted that Owens continued to spend insufficient time on field visits, something that Circassia believed critical to development and that had been an issue since 2016. Further, her field reports were still lacking. The upshot was that Owens was "not meeting expectations" for development, an important component of being a manager, as "her hyper focus on the business and her desire to control all the business needs in her region" became "a considerable concern."

Owens was aware of these issues as she read each review and discussed it with the relevant reviewer. However, she believed that there was a misunderstanding between her and Circassia "of how to develop people," and that her team's "high accolades and high achievements" demonstrated that she was developing them adequately. Circassia believed it necessary for Owens to allow her team members latitude to fail at times in order to develop. Owens disagreed.

Nevertheless, each performance review ranked Owens' performance as a "3" overall. According to Circassia's rating system, that meant that Owens was "a solid performer" who was "consistently performing well in all aspects of [her] job" and "[c]onsistently display[ing] expected competencies at the correct level."

Aside from the reviews themselves, Owens' region consistently ranked among the best in the company in overall revenue, although revenue was not the ultimate metric of sales success at Circassia. Owens' subordinates succeeded as well. In 2016, both Melanie Tsakonas and Christy Grounds were promoted. Tsakonas was selected for membership in Circassia's Sales Leadership Council, while Grounds became a representative for the Managed Markets team. In 2017, Gary Koop, Leah McDonald, and Carl Rose were listed as top performers in various categories. Also in 2017, Kareem Berdai, Carl Rose, Gary Koop, Patrick Brogan, and Troy Lott were promoted.

On February 1, 2018, Owens reported to Casey an incident with Chili Hill, an Accounts Director at Circassia. According to Owens, she spoke with Hill over the phone after she had emailed him about a new account and copied her team. Hill took a hostile volume and tone, stated that Owens' team was underperforming, and spoke to her in a way Owens described as abusive. The parties dispute whether Owens reported any discriminatory treatment. Owens states that Hill made "sexist comments" and that she reported them to Casey. But Casey says that "Owens did not assert that she thought Hill's conduct was because she was a female or based on her race or national origin."

Casey informed Lori Antieau,² Circassia's Senior Director of Human Resources, about Owens' problems with Hill. Antieau, who handled the complaint, states that Owens never painted Hill's conduct as discriminatory or otherwise based on gender, race, or national origin, either in the initial report or in subsequent meetings. Owens, on the other hand, asserts that when she met with Antieau on February 21, she "expressly state[d] to ... Antieau[ ] that Circassia is and has been discriminating against me and others because of gender." Antieau sent an email to, among others, Owens and Casey following that meeting recapping what was discussed, but it did not mention any allegations of discrimination. On March 22, Antieau asked Owens how things were going with Hill. Owens replied that they were "good," and that communication had improved. Owens did not dispute Antieau's description of the meeting or discuss discrimination.

On March 27 and 28, Casey and Antieau met with two other directors and determined that Owens, based on her performance issues and lack of improvement, should be placed on a Performance Improvement Plan ("PIP") along with two other RSMs, both white men. Tom Scaccia, Circassia's National Sales Director, supported putting Owens on a PIP based on his attendance of several of Owens' team conference calls. Scaccia highlighted two calls that occurred in February and March 2018, noting that they lacked structure, Owens did not review current business, each team member shared successful NIOX sales stories despite a national directive to focus on Tudorza, Owens did not focus on Tudorza, and Owens did not review a new company initiative.

On April 11, 2018, Casey met with Owens and placed her on the PIP. It summarized the issues with Owens' performance, described what Owens was expected to improve, and warned that unless things improved within 60 days,³ Owens could be terminated.

On April 18, Antieau discussed the PIP with Owens. According to Antieau's notes, Owens asserted that she was being discriminated against and pushed out via the PIP. She complained about the interaction with Hill, claimed that she was passed over for promotion, and alleged differential treatment compared to male RSMs. Antieau promised to investigate Owens' concerns. On April 25, Antieau discussed her findings with Owens. Specifically, Antieau interviewed Casey, Acheson, and three other individuals, including "one of Owens' peers." Antieau's investigation did not substantiate Owens' claims. Based on Antieau's notes, Owens responded by pointing out perceived deficiencies with Antieau's methodology and a statement that she would take legal action.

Casey continued to observe deficiencies in Owens' performance into May. On May 10, about halfway through the PIP, Antieau met with Owens. According to Antieau's notes, she discussed these deficiencies with Owens as well as a severance option. Owens asked how she was not meeting expectations.

On May 17, Owens emailed Antieau, copying Acheson, alleging discrimination and retaliation by Circassia. She alleged that the PIP was "completely unfounded" and "based on subjective criteria." She pointed out that her team members were recognized and promoted, and that her region was a consistent top performer. According to Owens, "[t]he difference" in treatment between her and other RSMs was "gender and ethnicity." According to Owens, Circassia did not explain how she was not meeting performance expectations, nor did Circassia provide "specifics concerning [her] performance."

Owens also alleged that Circassia was "involved in unlawful kickbacks and pricing" and "excessively charging Medicare." Antieau forwarded Owens' email to Preah Dalton, Director of Compliance, on May 21. Antieau also conducted her own investigation. Owens later emailed Dalton about compliance issues specifically surrounding one customer. Dalton investigated and found no evidence supporting the allegations.

Over the following month, Owens,...