Robertson v. Mylan Laboratories, Inc., No. 01-466.

• Docket Nº: No. 01-466.
• Citation: 848 A.2d 310
• Case Date: February 06, 2004
• Court: United States State Supreme Court of Vermont

848 A.2d 310

Lynne ROBERTSON
v.
MYLAN LABORATORIES, INC., Bertek, Inc. and Sharad Govil

No. 01-466.

Supreme Court of Vermont.

February 6, 2004.

Motion for Reargument Denied March 8, 2004.

848 A.2d 314

Andrew Jackson, Middlebury, for Plaintiff-Appellant

Patricia M. Sabalis of Downs Rachlin Martin, PLLC, Burlington, and Kathryn Mrkonich-Wilson of Littler Mendelson, P.C., Minneapolis, MN, for Defendants-Appellees.

Present: AMESTOY, C.J., DOOLEY, MORSE¹, JOHNSON and SKOGLUND, JJ.

DOOLEY, J.

¶ 1. In this workplace gender discrimination case brought under the Vermont Fair Employment Practices Act, 21 V.S.A. §§ 495-496, plaintiff Lynne Robertson appeals the superior court's grant of summary judgment in favor of defendants Mylan Laboratories, Inc., Bertek, Inc., and Sharad Govil. Plaintiff claims that defendants discriminated against her by failing to promote her, by giving her a low level of pay relative to her male peers at the company, and by terminating her in retaliation for her gender discrimination complaint. We affirm.

I. Facts and Procedural History²

¶ 2. Plaintiff was employed as a scientist in the Research and Development Division at Bertek, Inc. (now known as Mylan Technologies, Inc.), a St. Albans-based

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pharmaceutical company that develops and manufactures transdermal (through the skin) drugs. Bertek is a subsidiary of Mylan Laboratories, Inc. Plaintiff was hired by Bertek in September 1993 after interviewing with Dr. Ludwig Weimann and Dr. Sharad Govil. According to Govil, he supported hiring plaintiff, although plaintiff disputes that fact. At that time, plaintiff held a B.S. degree in biology and a master's degree in biochemistry, and had previous experience in the pharmaceutical industry and drug formulation, but had no prior educational or work experience in transdermal drug development. Throughout her career at Bertek, she worked directly or indirectly under Govil, who is now General Manager of Bertek

¶ 3. In 1994, while working full-time at Bertek, plaintiff began taking courses in pharmacology at the University of Vermont in pursuit of her doctoral degree, with Govil's approval. Plaintiff claims that Govil initially did not wish to approve her education, and did so only after she went to higher management with her request. Regardless, Govil twice approved plaintiff's request for a flexible work schedule, and also approved Bertek's payment of her tuition. Plaintiff completed the course requirements for the Ph.D. at the end of 1995.

¶ 4. Plaintiff worked under Govil in 1994 and 1995, and was promoted twice during that time, first to Senior Scientist in May 1995 at a salary of $46,275, then to Manager of Permeation and Dissolution in July 1995 at a salary of $52,000. In late 1996, plaintiff asked Govil to transfer her to the Formulations Group because she did not like the way she was being treated by her supervisor. Govil granted this request, and plaintiff became Manager of Permeation in the Formulations Group.

¶ 5. Despite the promotions and the discretionary transfer Govil approved, during 1997 and early 1998 plaintiff complained to several Bertek personnel that Govil treated her unfairly because of her gender. She claims that Dr. Scott Burton, Manager of Formulations and plaintiff's immediate supervisor, indicated to her that he agreed with her, and that Interim President Lou Debone and General Manager Matthew Costigan told her that Govil's actions were due to his "cultural differences" with respect to the treatment of women. Also during that period, several scientists in the Research and Development department, including Burton, left Bertek. Plaintiff claims that many of those employees — most of whom were male — left because they were dissatisfied with Govil's style and management.

¶ 6. The events underlying much of this case relate to Govil's actions in response to the departure of Burton and others. Govil proposed to upper management to split the Formulations Group into two groups: drug delivery and polymer science. In response to problems with drugs under development, he proposed to upgrade the scientific ability of the staff leaders in product development. As the restructuring was approved in February of 1998, the Manager of Formulations position was eliminated, and a new position of Director of Research and Development created. The positions of Supervisor of Drug Delivery and Supervisor of Polymers were created to report to the new research and development director.

¶ 7. While the restructuring was going on, Govil announced an interim organization. On January 21, 1998 he made plaintiff interim head of formulations while she continued to serve as Manager of Permeations.

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Govil asserts that this promotion was due to plaintiff's seniority, although plaintiff claims that Govil never conveyed that reason to her. Govil drafted job descriptions for two new supervisor positions. For the position of Supervisor of Drug Delivery, the job description required a Ph.D. in Pharmaceutics, Material Science, or Chemical Engineering, as well as five years of transdermal formulations experience

¶ 8. Consistent with the view that Bertek needed to upgrade the scientific skills of key employees in product development, Govil initiated a search for qualified persons. He identified Dr. Kenneth Miller as the most likely candidate for Supervisor of Drug Delivery, based on an interview in January 1998 before the position was approved. Govil posted the Supervisor of Drug Delivery position on February 13, 1998, and shortly after the application closing date, one week later, hired Dr. Miller.

¶ 9. Plaintiff believes that she should have been hired as Supervisor of Drug Delivery and she was rejected because she is a woman. She alleges a number of "irregularities" in the hiring of Dr. Miller:

1. He was interviewed before the job was even created. In plaintiff's view, this process violated a policy requiring that open positions be posted and that internal candidates be interviewed before external candidates.

2. The job description was created to mirror Dr. Miller's qualifications, rather than the reverse.

3. The opening was posted on Friday in violation of a policy requiring posting on Wednesday and was open for a week for which Govil believed plaintiff would be on vacation.

4. Bertek had on other occasions waived minimum education requirements for applicants who were close to having the needed education qualifications. Govil refused to waive the minimum qualifications in plaintiff's case.

5. Miller was unqualified because he lacked industrial experience, which is generally favored at Bertek; during the interview process, Miller stated that "getting drugs to go through skin" was not his area of expertise.

¶ 10. Plaintiff submitted an application for the Supervisor of Drug Delivery position on February 19, and the next day met with Govil for over an hour to discuss the position. According to defendants, Govil did not believe that plaintiff was qualified for the position due to her lack of a Ph.D. and the requisite five years of transdermal formulations experience. In contrast, Miller held a B.S. and a Ph.D. in chemical engineering, had worked for a successful competitor as well as several universities where he had performed transdermal drug research work for private corporations, and had authored publications and made numerous presentations on transdermal drugs.

¶ 11. Plaintiff was subsequently told that she was being promoted and that her salary would be increased to $60,000 (approximately $4,000 more than she was being paid at the time). The exact position that plaintiff was promoted to is disputed. Plaintiff claims that her new title was to be Senior Manager of Projects, and that she was to be in charge of all of the corporation's projects. She contends that this promotion was inexplicably delayed, and that her new pay was substantially less than the $80,000 that other staff at that level — specifically, new Supervisor of Drug Delivery Miller — were receiving. Defendants respond that, after plaintiff had submitted a proposed job description, defendants provided plaintiff with a revised position description stating that her title would be Project Manager and that her salary would be $60,000. Defendants

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also claim that plaintiff was told that there would be a transition period as she wrapped up work on her other projects.

¶ 12. In May 1998, plaintiff filed a formal complaint with Bertek, claiming that she was denied the Supervisor of Drug Delivery position, the Senior Manager of Projects title, and an $80,000 salary due to her gender. Plaintiff alleges that as a result of her complaint she was treated unfairly by Govil and other Bertek personnel. The Human Resources department subsequently conducted an investigation of the complaint and ultimately found that plaintiff had not been subject to unfair or discriminatory treatment. In July 1998, plaintiff filed a charge of gender discrimination with the Vermont Attorney General and the Equal Employment Opportunity Commission (EEOC). Following an investigation, the EEOC concluded that there was no evidence to suggest that plaintiff had been discriminated against based on her gender or retaliated against for filing a complaint, and dismissed her charge.

¶ 13. Plaintiff continued to work for Bertek as Project Manager, even after she filed the current lawsuit in Franklin County Superior Court in July 1999. Finally, in February 2000, plaintiff was terminated for breach of her confidentiality agreement with Bertek for alleged dissemination, via a resume submitted to a recruiter, of information regarding projects she had worked on for the company. Plaintiff contends that none of the information found on the resume was detrimental to the company and that other employees had divulged similar types of information and had not been punished. She added to this litigation a count that defendants retaliated against her...