Sempowich v. Tactile Sys. Tech., Inc.
| Decision Date | 23 October 2020 |
| Docket Number | No. 5:18-CV-488-D,5:18-CV-488-D |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | TRACY SEMPOWICH, Plaintiff, v. TACTILE SYSTEMS TECHNOLOGY, INC., d/b/a Tactile Medical, Defendant. |
On September 4, 2018, Tracy Sempowich ("Sempowich") filed a complaint against Tactile Systems Technology, Inc. d/b/a Tactile Medical ("Tactile" or "defendant") alleging a disparate pay claim under the Equal Pay Act ("EPA"), 29 U.S.C. § 216(b), sex discrimination, sex plus age discrimination, and retaliation claims under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., and a wrongful discharge claim under North Carolina common law [D.E. 1-1]. On October 12, 2018, Tactile removed the action to this court [D.E. 1].
On October 10, 2019, Sempowich moved for sanctions under Federal Rule of Civil Procedure 37(e) or, in the alternative, moved to strike certain documents from evidence [D.E. 24] and filed a memorandum and documents in support [D.E. 25, 26]. On October 29, 2019, Tactile responded in opposition [D.E. 72-77]. On November 4, 2019, Sempowich replied [D.E. 84].
On October 21, 2019, Sempowich moved to exclude the opinion of Tactile's damages expert Cowhey [D.E. 30] and filed a memorandum in support [D.E. 31]. On November 20, 2019, Tactile responded in opposition [D.E. 99]. On December 6, 2019, Sempowich replied [D.E. 126].
On October 21, 2019, Sempowich moved for partial summary judgment concerning three affirmative defenses [D.E. 34] and filed a memorandum and documents in support [D.E. 35-38]. On November 20, 2019, Tactile responded in opposition [D.E. 93-97]. On December 6, 2019, Sempowich replied [D.E. 129, 130, 132, 133].
On October 21, 2019, Tactile moved for summary judgment on all claims [D.E. 41] and filed a memorandum and documents in support [D.E. 42, 43, 46-65, 143]. On November 20, 2019, Sempowich responded in opposition [D.E. 103-09, 111-13, 116]. On December 6, 2019, Tactile replied [D.E. 137-39].
On October 21, 2019, Tactile moved to exclude the expert report of Sempowich's expert Berry [D.E. 44] and filed a memorandum in support [D.E. 45]. On November 20, 2019, Sempowich responded in opposition [D.E. 87]. On December 6, 2019, Tactile replied [D.E. 136].
On November 20, 2019, Sempowich moved to strike Tactile's statement of material facts and certain documents [D.E. 90] and filed a memorandum in support [D.E. 91, 92]. On December 11, 2019, Tactile responded in opposition [D.E. 145]. On December 20, 2019, Sempowich replied [D.E. 149].
On November 21, 2019, Sempowich moved for leave to file exhibits [D.E. 115]. On December 11, 2019, Tactile responded [D.E. 146].
On December 6, 2019, Sempowich moved to strike Tactile's responsive statement of material facts to Sempowich's motion for partial summary judgment [D.E. 127] and filed a memorandum in support [D.E. 128]. On December 23, 2019, Tactile responded in opposition [D.E. 155]. On January 6, 2020, Sempowich replied [D.E. 159].
As explained below, the court grants Tactile's motion for summary judgment, grants Tactile's motion to strike the expert report of Sempowich's expert Berry, grants Sempowich's motion for leave to file exhibits, denies Sempowich's motions for sanctions or in the alternative to strike, to exclude opinion testimony of defense expert Cowhey, and to strike Tactile's statement of material facts, and dismisses as moot Sempowich's motion for partial summary judgment and motion to strike Tactile's responsive statement of material facts.
Tactile is based in Minneapolis, Minnesota, and manufactures compression medical devices for treatment of conditions including chronic swelling and wounds. See Mattys Decl. [D.E. 47-1] ¶¶ 5-6.1 Gerald Mattys ("Mattys") has served as Tactile's Chief Executive Officer since 2005. Id. ¶ 3. Bob Folkes ("Folkes") has served as Tactile's Chief Operating Officer since February 2015. Before becoming COO, Folkes served as Tactile's Chief Financial Officer. See Folkes Decl. [D.E.47-2] ¶ 2. At all points relevant to the litigation, Folkes had responsibility over Tactile's Human Resources including, inter alia, reviewing and signing employment offers and participating in termination of employment decisions. See id.; [D.E. 112-3] 4, 27. In December 2008, Brian Rishe ("Rishe") began as Tactile's Vice President of Sales. On January 4, 2018, Rishe became the Senior Vice President of Sales. See Rishe Decl. [D.E. 47-3] ¶ 2. Tactile's primary product is the Flexitouch system. The Flexitouch system "applies gradient pressure to move lymph fluid and reduce swelling and other complications" on an individual's trunk or limbs. See Mattys Decl. [D.E. 47-1] ¶¶ 8-9. This product accounts for most of the company's sales. See id. ¶ 10.
Tactile has divided the United States into multiple sales "areas" or "regions." Within any given area or region, Tactile has created smaller units called "districts" or "territories." See Mattys Decl. [D.E. 47-1] ¶ 13. Tactile realigns each sales unit based on its business needs and at its discretion. See id. ¶ 14; Rishe Dep. [D.E. 48-4] 43-44, 60-61. Within each area or region, Tactile has a hierarchy of sales positions. The area director is the highest ranking sales manager position. The regional sales manager is the next highest in rank. See Mattys Decl. [D.E. 47-1] ¶ 15. Both positions involved crafting sales strategies to meet Tactile's sales goals, and hiring, training, and leading a group of product specialists. See [D.E. 62-1, 62-2, 62-6]; Sempowich Dep. [D.E. 48-1] 20-22, 26-27; Rishe Dep. [D.E. 48-4] 51-52. Product specialists, along with district managers, are responsible for helping Tactile sell its products within the assigned area or region. See Rishe Decl. [D.E. 47-3] ¶ 11.
Sempowich, a female, was born on September 7, 1964. See [D.E. 65-8] 10. Sempowich has twice worked for Tactile. In 2006, Tactile hired her for the product specialist role in South Florida, a position Sempowich voluntarily left in 2009. See Sempowich Dep. [D.E. 48-1] 2-3. In 2010, Tactile rehired Sempowich as a product specialist. Christopher Miles ("Miles"), a regional sales manager for Tactile, recommend her for rehire. See id. at 8. Before her interview, Rishe told Sempowich that he was "not in favor" of rehiring her. Sempowich Decl. [D.E. 106-3] ¶ 8. OnSeptember 13, 2010, Tactile hired Sempowich. Rishe decided to make the hire "with input" from Mattys and other senior Tactile executives. See Mattys Decl. [D.E. 47-1] ¶ 19; Folkes Decl. [D.E. 47-2] ¶ 6; Rishe Decl. [D.E. 47-3] ¶ 23; Watt Decl. [D.E. 47-5] ¶ 52. On October 3, 2011, Tactile promoted Sempowich to the senior product specialist position. Miles proposed promoting Sempowich to the position, and Rishe approved the promotion. See Rishe Decl. [D.E. 47-3] ¶ 27; Sempowich Dep. [D.E. 48-1] 8-9. In 2014, after expressing an interest in the regional sales manager job, Sempowich interviewed for the position with Rishe and several Tactile executive employees. See id. at 13-14. On April 1, 2014, Sempowich was promoted to regional sales manager of the Mid-Atlantic region. When Tactile promoted Sempowich, Tactile had four other regional sales managers. See id. at 9; Rishe Decl. [D.E. 47-3] ¶ 25.
Tactile created the Mid-Atlantic region by reassigning territories from the South region, which Miles led, and the North region, which Kyle Huss led. See Rishe Decl. [D.E. 47-3] ¶ 28; Sempowich Dep. [D.E. 48-1] 10-11. Tactile made several other reassignments of territory and personnel when Sempowich served as regional sales manager. For example, in July 2014, Tactile terminated Miles's employment as Southern region regional sales manager. On September 15, 2014, Tactile hired Greg Seeling ("Seeling") to replace Miles. See Rishe Dep. [D.E. 48-4] 18-19; [D.E. 65-8] 6, 9. In February 2015, Tactile created a "North Central Region" composed of territories within the Central region, and promoted Stephanie Toenges to regional sales manager for the new territory. See Rishe Dep. [D.E. 48-4] 59. At that time, the regional sales manager of the Central region was Adam Ferkinhoff ("Ferkinhoff"). See Rishe Decl. [D.E. 47-3] ¶ 25. Tactile later terminated Toenges's employment for a conduct violation at Tactile's national sales meeting. See [D.E. 62-5] 11; Rishe Dep. [D.E. 109-3] 59-62. On January 11, 2016, Tactile hired Karen Duprey ("Duprey") as regional sales manager of the Northeast region, replacing David Humiston. See Watt Decl. [D.E. 47-5] ¶ 11; [D.E. 65-8] 10. On December 2, 2016, Tactile terminated Duprey's employment, and realigned territories from the Northeast region. See Watt Decl. [D.E. 47-5] ¶ 11;Duprey Dep. [D.E. 48-9] 3; [D.E. 65-8] 10. Specifically, in 2017, Tactile moved Boston, Maine, New Hampshire, and parts of Vermont from the Northeast region to the New York/New Jersey district under then-district manager Angela Neofostistos. See Rishe Decl. [D.E. 47-3] ¶ 30.
In addition, in 2017, Tactile moved parts of Maryland and Virginia from the Mid-Atlantic region to the Northeast region. See id. ¶ 31; Rishe Dep. [D.E. 48-4] 43-44. Tactile moved the territories to make the Northeast region "sustainable," i.e., to provide the Northeast region with a "sufficient sales volume and headcount to build on and remain its own region", and chose the territories based on "geographic and other considerations." Rishe Decl. [D.E. 47-3] ¶ 31. Before the move, in August 2016, Sempowich told Rishe that "most of the [Mid-Atlantic] Region's significant sales growth over" 2017 and 2018 "would likely come from these territories." Sempowich Decl. [D.E. 106-3] ¶ 50.
Tactile also created new positions within the company during Sempowich's employment. On February 1, 2016, Tactile created the area director position. See Rishe Dep. [D.E. 48-4] 49; [D.E. 65-8] 6. Tactile's first employee to hold the position was Jackie Gorsham ("Gorsham"). See Folkes Dep. [D.E. 48-3] 5; Rishe Dep. [D.E. 48-4] 49-50. On June 1, 2017, Ferkinhoff became Tactile's second area...
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