De La Torre v. Merck Enterprises, Inc.

• Decision Date: 31 March 2008
• Docket Number: No. CV-05-3987-PHX-ROS.,CV-05-3987-PHX-ROS.
• Citation: 540 F.Supp.2d 1066
• Parties: Karen DE LA TORRE, et ux., Plaintiffs, v. MERCK ENTERPRISES, INC., et al., Defendants.
• Court: U.S. District Court — District of Arizona

Page 1066

540 F.Supp.2d 1066

Karen DE LA TORRE, et ux., Plaintiffs, v. MERCK ENTERPRISES, INC., et al., Defendants.

No. CV-05-3987-PHX-ROS.

United States District Court, D. Arizona.

March 31, 2008.

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Steven Gary Sandoval, Sandoval & St. Clair PLC, Tucson, AZ, for Plaintiffs.

Donald Peder Johnsen, Gallagher & Kennedy PA, Phoenix, AZ, Joel H. Kaplan, Seyfarth Shaw LLP, Chicago, IL, Robert J. Carty, Jr., Timothy M. Watson, Seyfarth Shaw LLP, Houston, TX, for Defendants.

ORDER

ROSLYN O. SILVER, District Judge.

Before the Court is Defendants' Motion for Summary Judgment (Doc. 125) and Motion to Strike (Doc. 137). For the reasons below, the Court will grant Defendants' Motion for Summary Judgment and grant in part and deny in part Defendants' Motion to Strike.

BACKGROUND

The following facts are uncontroverted or presented in a light most favorable to Plaintiff.¹ Defendant Merck Enterprises, Inc. ("Merck") markets health products to hospitals, doctors, and pharmacies in the United States. (Defs.' SOF ¶ 1.) Plaintiff Karen Da La Torre is 54-year-old woman who began working for Merck in 1980 as a professional representative delivering product information to hospitals, doctors, and pharmacies. (Id. ¶¶ 1, 2.) As a professional representative, Plaintiff did not maintain an office at Merck and worked from home. (Id. ¶ 3.) Merck is a subscriber under the Arizona Workers' Compensation Act. (Id. ¶ 7.)

Defendant Steve Hildebrand supervised Plaintiff from 1988 to 1990 and from 1996 until March 2004. (Id. ¶ 8.) Plaintiff interacted with Hildebrand during field visits which occurred once or twice a month and during business meetings that occurred once a month. (Id. ¶ 10.) Her interaction with Hildebrand ceased almost entirely when she began reporting to Lynne Kanatas in March 2004. (Id. ¶ 11.) In her performance reviews for 1996, 1998, and 2000, she wrote favorable comments about Hildebrand. (Id. ¶ 12.) Hildebrand recommended Plaintiff for promotion from Senior Representative to Executive Professional Representative in 1997 and consistently reported favorable performance ratings for Plaintiff. (Id. ¶¶ 12-14.) Hildebrand's immediate supervisor, Defendant Phillip Vaughn, approved all the merit raises and discretionary awards Hildebrand recommended from 1998 to 2004, awarded Plaintiff stock options in 2001 and approved an "Award of Excellence" to Plaintiff in 2004. Plaintiff was one of the top producers at Merck and she described her own job performance as "a 10 out of 10." (Id. ¶ 18; Pl.'s SOF ¶ 14.)

Over the years, the use and analysis of computer-related data at Merck became increasingly important. (Defs.' SOF ¶¶ 19-20.) From 2000 to 2005, Plaintiff listed "computer skills" as an area for development in her annual Employee Development Plans. (Id. ¶¶ 22-23.) Plaintiffs performance evaluations in 2001, 2002, and 2003 also noted the need for her to improve her computer skills. (Id. ¶ 25.) When Kanatas became Plaintiffs supervisor in 2004, she "developed concerns about [Plaintiffs] ability to use" Merck's computer-based business-analysis tools. (Id. ¶ 26.) Plaintiff told Kanatas that "she wanted to learn how to use all the sales tools and to learn finally how to type as it was something she could not do. She said in the past that she has relied on her teammates or her previous manager to either type or create the documents she needed to manage her business." (Id.) Plaintiff did not attend training which was offered to develop her computer skills. (Id. ¶ 21.) However, Plaintiffs lack of computer skills did not prevent Plaintiff from being one the top selling performers at Merck. (Pl.'s SOF ¶¶ 22-23.)

In March 2004, Plaintiff learned that she was not promoted from Executive Professional Representative to Senior Executive Professional Representative, but that two younger females in her district were selected. (Defs.' SOF ¶ 29.) A promotion to Senior Executive Professional Representative is reserved for representatives who have developed a consistent record of successful sales figures and a high level of competence. (Id. ¶ 30.) In 2002 and 2003, Plaintiffs sales results fell below her objectives. (Id. ¶ 30.) The two females who received the promotions to Senior Executive Professional Representative had better sales numbers than Plaintiff. (Id. ¶ 32.)

In September 2004, Defendant Connie Cason, an Osteoporosis Specialty Manager, posted an opening for an Osteoporosis Specialty position. (Id. ¶¶ 35, 39.) Computer skills are particularly important for Osteoporosis Specialty representatives. In addition, the specialty position was previously filled by the district's "computer champion"² — an employee who had substantial expertise using computers and who helped other representatives trouble-shoot computer-related problems. (Id. ¶ 37.) Consequently, it was important to Cason that the person selected to fill the specialty position have significant proficiency with Merck's computerized business-analysis tools. (Id. ¶ 38.)

Based on their resumes, two candidates seemed most qualified for the position: Plaintiff and Darryl Blake. (Id. ¶ 40.) Prior to interviewing the candidates, Cason preferred Plaintiff because she had been with Merck longer. (Id.) Before the interview, Kanatas called Cason to discuss the candidates skills. (Id. ¶ 41.) Kanatas was surprised to learn that Cason was probably going to select Plaintiff because she believed that Blake was better prepared for the job since he had computer-related skills which Plaintiff lacked. (Id. ¶ 42.) Cason was part of a three person panel³ that interviewed Plaintiff, Black, and a third candidate, Arti Short, on September 16, 2004. (Id. ¶¶ 41, 44.) At the interview, Plaintiff brought a sheet listing her historical sales figures. (Id. ¶ 45.) During the interview, Plaintiff also volunteered that one of her development areas was her lack of computer skills. (Id.) Blake brought a book containing, among other things, examples of business analyses he had prepared using Merck's computerized business-analysis tools. (Id. ¶ 47.) By the end of the interviews, Cason viewed both Plaintiff and Black as equal in most skills, except that Blake demonstrated greater proficiency with computers. (Id. ¶ 48.) Cason declared that, after the interview, she and her fellow interviewers reached a consensus that Blake was the best-qualified candidate. (Id. ¶ 49.) Cason selected "motivational fit" as the reason for not hiring Plaintiff on a form, and some unidentified person from Merck told Cason that she had not selected the right reason.⁴ (Pl.'s SOF ¶ 40-43.)

That same day, Cason informed her supervisor, Defendant Dan Schwarz, about the consensus of the interviewers that Blake was the best-qualified candidate. (Id. ¶¶ 50-51.) Schwarz was also aware that Plaintiff had received a serious policy violation in January 2003 and that Blake did not have any policy violations.⁵ (Id. ¶ 51.) Based upon Plaintiffs lack of computer skills and Plaintiff's prior policy violation, Schwarz ratified Cason's decision to select Blake. Cason did not discuss her decision with anyone other than her fellow interviewers, Kanatas, and Schwarz; and Schwarz did not discuss his decision with anyone other than Cason. (Id. ¶ 54.)

After the interview and before she was informed of who was selected, Plaintiff spoke with Vaughn, Black, and Short, and Hildebrand approached her. Without saying a word, he began to "massage" her shoulders. (Defs.' SOF ¶¶ 56, 64, 68.) Hildebrand placed both hands on the middle area of her shoulders and began kneading her muscles. (Id.) When he did this, Plaintiff "flinched," "pull[ed] the shoulders down," and "twist[ed] away." (Id.) This massage could have lasted for as long as one minute. (Id.) Plaintiff left the room visually upset and offended and reported the incident to Kanatas the next day, September 17, 2004. (Pl.'s SOF ¶ 56-59.)

Kanatas asked Plaintiff how she wanted her complaint to be handled, and Plaintiff said that she wanted Vaughn to talk with Hildebrand. (Defs.' SOF ¶ 58.) Vaughn asked Kanatas whether Plaintiff wanted to make a claim of sexual harassment, and Plaintiff said she did not. (Id.) Vaughn immediately called Hildebrand and counseled him about the situation, including that casual touching in the workplace may be construed differently by different employees, instructed him to report to Vaughn's office for a further face-to-face counseling session, and called and reported what occurred to Kanatas. (Id. ¶ 59.) Twenty minutes later, Kanatas called Plaintiff back to let her know that Hildebrand had been counseled by Vaughn and asked Plaintiff "if there [were] any other actions she wanted to take, and [Plaintiff] said `no.'" (Id. ¶ 59.) Hildebrand had never done this to Plaintiff before and she had never complained before this incident. (Id. ¶ 57.) Vaughn did not report this incident to Human Resources. (Pl.'s SOF ¶¶ 60-62.) Neither Kanatas, Vaughn, nor Hildebrand told anyone else about Plaintiffs complaint. (Id. ¶ 62.)

Plaintiff was notified of Cason's decision on September 20, 2004. (Pl.'s SOF ¶ 54.) Ten days later, on September 30th, Plaintiff sent an e-mail to Kanatas and copied two human resources professionals again complaining about the massage incident, describing it as "an incident of sexual harassment." (Defs.' SOF ¶¶ 63, 65.) Plaintiff also said that she could "only speculate that perhaps [her] actions of reporting an incident of sexual harassment resulted in [her] being denied a position for which [she] was highly qualified." (Id. ¶ 65.) Human resources followed up with Kanatas and Plaintiff several times and spoke with the witnesses, Vaughn, Blake, and Short. These witnesses all said that, in their view, they had not witnessed anything inappropriate and human resources concluded that no sexual harassment had occurred. (Id. ¶ 67.) Hildebrand was never disciplined for this event, and Plaintiff was not...