Russell v. Bsn Med. Inc.

• Decision Date: 11 June 2010
• Docket Number: No. 3:09cv284-RJC-DSC.,3:09cv284-RJC-DSC.
• Citation: 721 F.Supp.2d 465
• Court: U.S. District Court — Western District of North Carolina
• Parties: Michele M. RUSSELL, Plaintiff, v. BSN MEDICAL, INC., Defendant.

721 F.Supp.2d 465

Michele M. RUSSELL, Plaintiff,

v.BSN MEDICAL, INC., Defendant.

No. 3:09cv284-RJC-DSC.

United States District Court,W.D. North Carolina, Charlotte Division.

June 11, 2010.

COPYRIGHT MATERIAL OMITTED.

Amy Yager Jenkins, McAngus, Goudelock & Courie, LLC, Charleston, SC, Sylvan Stephen Lang, Jr., Lang Law Firm, San Antonio, TX, Tracey Rebecca Downs, McAngus Goudelock and Courie, Charlotte, NC, for Plaintiff.

Bruce M. Steen, Makila Aisha Scruggs, McGuire Woods LLP, Charlotte, NC, for Defendant.

ORDER

ROBERT J. CONRAD, JR., Chief Judge.

THIS MATTER is before the Court on the defendant's motion for summary judgment (Doc. No. 24) and the related briefs and attachments in support and opposition. The matter is now ripe for the Court's determination. For the reasons set forth below, the Court will GRANT IN PART and DENY IN PART the defendant's motion.

I. BACKGROUND

BSN medical, Inc. (“BSN”), is a medical device company that employs an extensive U.S. sales force. Plaintiff Michele Russell's relationship with BSN began in 1991, when she began working as a sales representative for Parker Medical, which later became Smith & Nephew. Both Parker Medical and Smith & Nephew were BSN predecessor companies.

In February 2007, Russell, still serving as a sales representative for BSN, attended a BSN sales training weekend in San Diego, California. During that weekend, Russell attended a group dinner with eight other BSN employees. She was the only female present at the dinner. Russell claims that when she arrived at the party's restaurant table, the only available seat was at the head of the table. She maintains that when she went to sit down, Ken Krull, a sales representative at the time, told her “no girl” sits at the head of his tables, which was met with laughter and loud comments from others at the table. (Doc. No. 29-3 at 12). Russell alleges that throughout the dinner, Krull led or contributed to an inappropriate conversation including topics such as sex acts, bestiality, strippers and strip clubs, and Tijuana sex shows. Upon Russell's twice objecting to the conversation, she maintains that the men left her at the dinner table and went to the bar to continue the conversation. Russell alleges the conversation continued throughout the van ride back to the hotel, and that she was so visibly upset that the driver of the van escorted her part of the way back into the hotel.

That night, Colin Cashin, a BSN manager who was in the van and at the dinner, reported to Gary Keytel, Vice President of U.S. Sales, that Krull had “been particularly rude and displayed behavior” that BSN did not find acceptable. Keytel called Russell the next day and instructed her to report any inappropriate behavior to management. Russell informed Keytel of the events of the group dinner. Both Cashin and Keytel informed Krull that they were “disappointed” with his behavior, and Cashin requested that Krull apologize to Russell. Russell alleges that thereafter, Krull approached her in an aggressive manner and asked “what the ‘fuck’ she had said to Keytel to get him in ‘trouble.’ ” (Doc. No. 29 at 4).

Russell claims that after the incident in San Diego, whenever Krull would come into contact with her, he would echo a similar refrain to his earlier confrontation. ¹ On one occasion, during a sales meeting in 2008, Krull allegedly commented on Russell's black nail polish and told her that he thought her nail polish was inappropriate and an “outward sign” of her “overly aggressive” nature. Russell claims on various occasions Krull called her a “stupid girl,” the “girl that fucked up his professional life,” and stated, “Boy, you have one girl at a dinner....” (Doc. No. 29-3 at 13).

Russell complained to Keytel more than ten times by phone, between three and five times in person, and more than once via email. Keytel admits Russell's complaints about Krull were “fairly regular.” (Doc. No. 29-12 at 7). When Russell complained to him on one occasion, he states that he “didn't take it as a real serious situation” because she “never looked very distraught or in tears or like she was in any way traumatized.” ( Id. at 8).

In February 2008, Krull received a promotion to the position of Field Sales Manager for the Southern Region, which included Russell's territory of Texas. Krull thus became Russell's direct supervisor, and he reported directly to Keytel. Within a week of interviewing for the position, Krull sent Russell an email at 7:11 p.m. on a Friday evening stating that she was “behind the curve” and that he had “no defense or explanation for [her] performance.” (Doc. No. 29-4 at 58). In the same email, Krull requested that Russell provide him with an improvement plan “by this weekend,” and that he was reporting her status to Keytel on Monday. ( Id.).

On February 27, 2008, Krull emailed Cashin and told him Russell was a “slacker.” The subject line of the email was “Michele Problem.” (Doc. No. 30 at 2). Two days later, on February 29, Krull emailed Keytel about a customer issue with Russell. Krull wrote, “Note the positioning [of] Michele below [.] She is trying to put one over on me-Blatant LIES.” (Doc. No. 29-6 at 2). At the end of the email, Krull wrote, “Michele is clearly not being honest with us and is digging herself into a deep deep hole. I am beginning the recruiting process for her territory.” ( Id.). Russell disputes Krull's allegations of her dishonesty.

On April 11, 2008, Russell sent an email to Keytel detailing her concerns about Krull's alleged retaliation and harassment. The email states, in part:

I have been made to feel that Mr. Krull's continual, merit[-]less accusations are a retaliatory smokescreen that is ultimately based on historical situations of harassment that began in San Diego (2007).... I realize that Mr. Krull is an inexperienced manager in terms of employment relations and as such, he should be allowed a learning curve. However, it is unacceptable that he be able to create a hostile work environment within a corporate setting. I should not be put in a situation where I am under constant attack by Mr. Krull.... It is improper for Mr. Krull to repeatedly misrepresent me to my peers and administration.

... Mr. Krull's continued treatment towards me and in my opinion harassment, needs to be addressed by BSN management.

It is my objective to spend my time furthering the success of BSN and its market goals; not constantly defending myself from unfound attacks by my [supervisor].

(Doc. No. 29-6 at 5).

The next day, on April 12, Keytel forwarded this email to Krull. Then three days later, on April 15, Krull sent Russell an email entitled “Performance deviation report-Michele Russell.” (Doc. No. 29-4 at 2). It contained a copy of a “Performance / Integrity Report” (the “Report”). The Report states that it was submitted to Keytel for review and details Krull's observations of Russell's shortcomings as a sales representative. In a conference call on the same day with Krull and Keytel, Russell was told that she was on probation.

On April 18, 2008, Russell responded to the Report in a formally written email, which she sent to Keytel, Krull, and John Poag of human resources. Russell cited some of her alleged successes as a sales rep over the years at BSN, and she responded to some of the allegations Krull had detailed in the Report. Also on April 18, 2008, Russell filed a charge of discrimination (the “Charge”) with the Equal Employment Opportunity Commission (“EEOC”). Russell essentially alleged in the Charge that she reported sexual harassment to Keytel, and that as a result, Krull retaliated against her over the course of the subsequent year.

On April 19, 2008, the day after Russell filed the Charge, Keytel emailed her and told her “I expect to see a turn around.... It's very simple, get your sales numbers up.... I want to see concrete sales and area coverage plans and a quick performance upswing.” (Doc. No. 29-6 at 7).

As early as April 21, 2008, two days after Russell filed the Charge, Krull began working with a third-party recruiter to locate candidates for a sales rep position with the same job description and territory as Russell's. Roughly a month later, Krull received an email from Russell reporting her recent positive sales activity. Krull forwarded Russell's email to Keytel and remarked: “How do you want me to handle the response to this[?] I was concerned about a performance upswing adding leverage to her position.” (Doc. No. 29-13 at 41). By June 12, Krull notified the recruiter that BSN needed to postpone looking for a candidate for the position because he was having “issues separating the current rep.” (Doc. No. 29-19 at 13).

Later that year, on August 5, 2008, Krull received an email from a customer, who wrote to Krull that he had been unable to reach Russell at the phone number 407-803-1144 after calling several times and leaving messages. The number the customer listed, however, was Krull's own telephone number. Before forwarding the email to Keytel, Krull changed the number from his own to Russell's, which made it look as if the customer reported not receiving a response after having called Russell's number rather than Krull's. Krull maintains he was merely correcting the customer's typo, and that the customer had in fact called Russell's phone. Russell alleges Krull had BSN's customer service re-route her customer calls to Krull, in a deliberate attempt to make it look as if she was unresponsive to customers.

On September 10, 2008, BSN informed Russell that her employment would be terminated effective October 10, 2008. In the termination letter, signed by Keytel, BSN listed its reasons for Russell's termination. These reasons included customer complaints, lack of responsiveness to customer and BSN requests, failure to turn in basic sales information, turning in a monthly report late, and missing a portion of a mandatory monthly conference call. The letter details Russell's alleged poor...