Tice v. Bristol-Myers Squibb Co.

• Citation: 515 F.Supp.2d 580
• Decision Date: 13 September 2007
• Docket Number: Civil Action No. 06-1719.
• Parties: Carol H. TICE, Plaintiff, v. BRISTOL-MYERS SQUIBB COMPANY, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

515 F.Supp.2d 580

Carol H. TICE, Plaintiff, v. BRISTOL-MYERS SQUIBB COMPANY, Defendant.

Civil Action No. 06-1719.

United States District Court, W.D. Pennsylvania.

September 13, 2007.

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Douglas C. Hart, Justin T. Barron, Leech, Tishman, Fuscaldo & Lampl, Pittsburgh, PA, for Plaintiff.

Beth M. Henke, Judith E. Harris, Morgan, Lewis & Bockius, Pittsburgh, PA, for Defendant.

MEMORANDUM OPINION

CONTI, District Judge.

Pending before this court is a motion for summary judgment (Doc. No. 5) filed by defendant Bristol-Myers Squibb Co. ("Bristol-Myers" or "defendant"). Plaintiff Carol Tice ("plaintiff') filed this civil action asserting two counts. Count one sets forth claims under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), and the Pennsylvania Human Relations Act, 43 P.S. § 954(b) ("PHRA").¹ Plaintiff, while admitting to violating a company policy of Bristol-Myers asserts that fellow employees under the age of forty engaged in the same activity, yet were not subject to disciplinary measures. Because plaintiff is over the age of forty and was disciplined, i.e., terminated for allegedly engaging in activity for which other employees were not similarly disciplined, plaintiff claims she was discriminated against on the basis of her age.

Count two sets forth claims for violating Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") and the PHRA, 43 P.S. § 955.² With respect to these claims plaintiff alleges that male employees engaged in the same activity for which plaintiff was terminated; yet, the male employees were not terminated for the same behavior. Plaintiff alleges that Bristol-Myers violated Title VII when it terminated her for violations of its company policy, but failed to take similar actions against its male employees.

Bristol-Myers moves for summary judgment with respect to plaintiff's claims on the theory of issue preclusion or collateral estoppel, arguing that dispositive factual issues before this court were previously adjudicated and resolved in a prior federal administrative hearing that was separate from the statutory framework for Title VII and ADEA claims. Bristol-Myers asserts that plaintiff is precluded from relitigating those factual issues here. Plaintiff argues that no factual finding by an administrative agency, whether state or federal, may ever be given collateral estoppel effect in a Title VII or ADEA case. This court finds the doctrine of issue preclusion will be applicable when a material fact at issue in a Title VII or ADEA case was litigated and resolved in a final decision rendered in an action filed under Title VIII of the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A ("SOX"), a whistleblowers' protection provision. Congress has provided that, with respect to a SOX claim, when a final order of the Secretary of Labor could have been reviewed by a court of appeals, that order cannot be judicially reviewed in any other civil proceeding. 18 U.S.C. § 1514A(b)(2) (SOX action is governed by rules and procedures in 49 U.S.C. 42121(b)(4), which provides a limitation on collateral attack); 29 C.F.R. § 1980.112(a). Here, the decision of the administrative law judge became the final order of the Secretary of Labor and review of that order by a court of appeals could have been obtained. Under these circumstances plaintiff is collaterally estopped from relitigating the factual issues resolved by the ALJ and summary judgment will be granted in favor of defendant.

Factual Background

The factual background is derived from the undisputed evidence of record and the disputed evidence of record viewed in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). ("The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor").

In July 1986, plaintiff began her employment with a predecessor of Bristol-Myers as a pharmaceutical sales representative. In 1997, plaintiff was promoted to a cardiovascular specialty position. (Pl.Ex. 1 at 21). In July 2003, she was given the additional title of Senior Business Manager. (Def. Ex. 2 at 12).

In early 2004, two employees complained to plaintiff's manager, Harry Broadus ("Broadus"), that plaintiff was reporting sales calls outside of her territory. These employees complained that plaintiff recorded sales calls that she had not actually made. (Id. at 417-18). In December 2004, the same two employees again informed Broadus that plaintiff was still reporting calls on physicians outside of her territory. (Id. at 448). Also in December 2004, a separate department, the sample reconciliation group, notified Broadus that plaintiff had an issue with reconciliation of samples of the drug "Coumadin." The sample reconciliation group informed Broadus that three or four cases of the drug, for which plaintiff was responsible, were missing. (Id. at 160). On December 14, 2004, a meeting took place between Broadus and plaintiff. (Id. at 403). During this meeting, plaintiff admitted to Broadus that she had falsified sales call reports by recording sales calls on doctors with whom she had not actually met. (Id. at 407-09). Broadus, in turn, informed plaintiff that disciplinary measures would likely be taken with respect to the reconciliation problems identified by the sample reconciliation group. Broadus further informed plaintiff that he notified Kathleen Allard ("Allard"), regional vice president of sales; about the falsified sales call reports. Broadus advised plaintiff that the call reporting issue was under investigation. (Id. at 167-69). In a memorandum dated December 14, 2004, Broadus memorialized the conversation between plaintiff and himself and forwarded the memorandum to Allard. (Id. at 218).

In response to the December 14, 2004 memorandum, plaintiff prepared a memorandum dated December 18, 2004, requesting a meeting with Allard. In that memorandum, plaintiff alleged: 1) a belief that Broadus and other personnel retaliated against her because of a previous sexual harassment claim; 2) a belief that Broadus may have improperly perceived her as not being able to do her job because of a medical condition;³ and 3) her concern regarding appropriate business ethics as it related to the accurate reporting of daily sales calls and the pressure placed upon sales representatives to misrepresent the number of sales calls. A copy of plaintiff's memorandum was sent to Kathryn Santos-Tharney ("Santos-Tharney"), human resources generalist. (Def.Ex. C-5). Allard contacted Santos-Tharney and advised her not to contact plaintiff regarding the allegations made in her December 18, 2004 memorandum. Allard advised Santos-Tharney to allow human resources to investigate the allegations. (Def. Ex. 2 at 215, 247). Because the allegations involved possible company violations, Santos-Tharney notified Kathleen McElarney ("McElarney"), an employee relations investigator. (Id. at 308).

In January 2005, Santos-Tharney and plaintiff discussed the issues and concerns raised in plaintiff's memorandum on the telephone. (Pl.Ex. 1 at 82). On February 10, 2005, plaintiff had a telephone conversation with McElarney, who was in charge of investigating the allegations in plaintiff's memorandum. (Id. at 312). Plaintiff and McElarney discussed the allegations in plaintiff's memorandum. Plaintiff explained the nature of her previous sexual harassment claim, again admitted to having falsified sales call reports, and indicated that other Bristol-Myers employees also falsified sales call reports. Plaintiff did not provide McElarney with names of any alleged offenders (Def. Ex. 2 at 329) and did not provide examples of how Broadus had treated her differently due to her medical condition. (Id. at 312-14).

In addition to the telephone conversation between McElarney and plaintiff concerning plaintiff's memorandum, McElarney interviewed Broadus about the allegations. (Id. at 318-19). McElarney determined that plaintiff's accusations of retaliation related to her previous claim for sexual harassment and discriminatory treatment based upon her medical condition were unfounded. (Id. at 346, 349). In addition, McElarney confirmed that plaintiff falsified sales calls without being asked to do so. (Id. at 319). Based upon this information, on March 2, 2005, McElarney prepared a memorandum recommending that plaintiff be terminated for falsifying sales call reports. (Id. at 321). The act of falsifying sales call reports is a violation of Bristol-Myers's Code of Conduct, which provides in pertinent part:

Immediate Termination Certain violations of this Code of Conduct result in immediate termination for cause (i.e., without severance). Examples include, but are not limited to, the following:

Falsification of any company document, including call reports and expense reports. Falsification of call reports includes, but is not limited to, reporting a call on a date other than the date on which the calls was made....

(Def. Ex. R14 at 18). Plaintiff was terminated on April 13, 2005. (Def. Ex. 2 at 299).

On May 12, 2005, plaintiff filed a complaint with the United States Department of Labor's Occupational Safety and Health Administration ("OSHA"), alleging that Bristol-Myers violated SOX. (Def. Ex. 1 at 1). Plaintiff claimed that she was terminated for engaging in protected activity. The alleged protected activity consisted of plaintiff's admission to having falsified sales call reports and her reporting that other Bristol-Myers employees had done the same. In essence, plaintiff alleged in her SOX claim that the protected activity was the reporting of company violations. Plaintiff claimed that because she reported that undisclosed employees of Bristol-Myers, as well as herself, falsified call reports, Bristol-Myers terminated her. Additionally, plaintiff claimed that...