Wagner v. Novartis Pharmaceuticals Corp.

• Decision Date: 10 July 2008
• Docket Number: No. 3:07-CV-129.,3:07-CV-129.
• Citation: 565 F.Supp.2d 940
• Parties: Robert WAGNER, Plaintiff, v. NOVARTIS PHARMACEUTICALS CORPORATION, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

565 F.Supp.2d 940

Robert WAGNER, Plaintiff, v. NOVARTIS PHARMACEUTICALS CORPORATION, Defendant.

No. 3:07-CV-129.

United States District Court, E.D. Tennessee, at Knoxville.

July 10, 2008.

COPYRIGHT MATERIAL OMITTED

James K. Scott, Daniel, Pemberton, Scott & Scott, PLLP, Knoxville, TN, Anne Lamkin Durward, Massey, Stotser & Nichols PC, Cynthia Wilkinson, Wilkinson Law Firm, PC, Birmingham, AL, for Plaintiff.

Ronald G. Daves, Patty K. Wheeler, Wimberly, Lawson, Seale, Wright & Daves, PLLC, Knoxville, TN, Aaron R. Gelb, Lawrence L. Summers, Vedder Price Kaufman & Kammholz, PC, Chicago, IL, for Defendant.

MEMORANDUM AND ORDER

H. BRUCE GUYTON, United States Magistrate Judge.

This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73(b) of the Federal Rules of Civil Procedure, and the consent of the parties, for all further proceedings, including entry of judgment [Doc. 6], on the defendant's Motion for Summary Judgment. [Doc. 46] The parties appeared before the Court on July 7, 2008, for a hearing on the instant motion. Attorneys James K. Scott, Anne Lamkin Durward, and Cynthia Wilkinson appeared on behalf of the plaintiff, and attorneys Lawrence L. Summers, Aaron R. Gelb, and Patty K. Wheeler appeared on behalf of the defendant. After the hearing, the Court took the motion under advisement, and it is now ripe for adjudication. For the reasons set forth below, the defendant's motion [Doc. 46] will be GRANTED in part and DENIED in part.

I. Relevant Facts

In 1991, plaintiff Robert Wagner ("Wagner") was hired by Ciba-Geigy, defendant Novartis Pharmaceuticals Corporation's ("Novartis") predecessor, as a sales professional. In 1992, Wagner advanced to the position of Medical Representative. In 1995, Wagner was promoted to Senior Medical Representative, and then promoted again to Institutional Specialist. On May 9, 1998, Wagner began his service with the Air Force Reserve.

In 2000, Wagner was promoted to Senior Health Systems Specialist. In 2001, Wagner became a Veterans Affairs Specialist. In 2002, Wagner received the Cornerstone Club Award, a prestigious sales award at Novartis. Wagner also received the President's Club Award and the MVP award. Sometime in early 2002, Wagner attended Management Development-1 ("MD-1"), the first in a three part training course used by Novartis to train employees for management positions in the company. In May, 2002, Wagner applied for the position of Area Sales Manager in the Veteran's Affairs Specialty Field. Wagner did not receive an interview and was not selected for the position.

In February, 2003, Wagner attended and failed MD-2. In 2004, Wagner became a Senior Hospital Specialist, and then became a Pioneering Member of the Eastern Hospital Specialists Council. In July, 2004, Wagner applied for a District Manager position in Knoxville, Tennessee, but was not interviewed and was not selected for the position. In January, 2005, Wagner applied for another District Manger position in Knoxville, but was not interviewed and was not selected. In March, 2005, Wagner successfully completed M2. In August, 2005, Wagner successfully completed MD-3.

On September 15, 2005, Wagner applied for a District Manager position in San Antonio, Texas. Wagner was not interviewed for this position and was not selected. In October, 2005, Wagner applied for a District Manager position in Seattle, Washington. Wagner was not interviewed for this position and was not selected. In November, 2005, Wagner applied for an Area Sales Manager position in Tampa, Florida. Wagner was not interviewed for the position and was not selected.

In December, 2005, Wagner was offered a management position with Sanofi-Aventis, a competitor of Novartis. On January 3, 2006, Wagner submitted a letter of resignation to Novartis. January 31, 2006, was Wagner's last day of employment with Novartis. On February 1, 2006, Wagner began work with Sanofi-Aventis. On April 11, 2007, Wagner filed the instant suit, alleging that Novartis discriminated against him by failing to promote him, by retaliating against him for protected activities, and by constructively discharging him, all in violation of the Uniformed Services Employment and Re-employment Rights Act ("USERRA"), 38 U.S.C. § 4301, et seq. Wagner further alleges that Novartis' actions violated Tennessee common law and the Tennessee Public Protection Act, Tenn.Code. Ann. § 50-1-304.

II. Standard of Review

Under Fed.R.Civ.P. 56(c), summary judgment is proper if "the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." The burden of establishing there is no genuine issue of material fact lies upon the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n. 2, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable jury could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The genuine issue must also be material; that is, it must involve facts that might affect the outcome of the suit under the governing law. Id.

The judge's function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper jury question, and not to weigh the evidence, judge the credibility of witnesses, or determine the truth of the matter. Id. at 249, 106 S.Ct. 2505. Thus, "[t]he inquiry performed is the threshold inquiry of determining whether there is the need for trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250, 106 S.Ct. 2505.

III. Positions of the Parties

Novartis seeks summary judgment in its favor as to all of Wagner's claims, arguing that the four year statute of limitations bars some of Wagner's claims, that Wagner's military service was not a motivating factor in any of the employment decisions made by Novartis, that Novartis did not discriminate or retaliate against Wagner, and that Wagner was not terminated or constructively discharged. Wagner opposes the motion, arguing that there is no statute of limitations for USERRA claims, and further arguing that there are genuine issues of material fact `as to each of his claims, and thus summary judgment is not appropriate.

IV. Analysis

A. Statute of Limitations

The first issue before the Court is whether part of Wagner's USERRA claim is barred by a statute of limitations. USERRA states, in pertinent part, that "[n]o State statute of limitations shall apply to any proceeding under this chapter." 38 U.S.C. § 4323(i). Under USERRA, "[t]he term `State' means each of the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, and other territories of the United States (including the agencies and political subdivisions thereof)." 38 U.S.C. § 4303(14). Thus, by the plain language of the statute, state statutes of limitations do not apply to USERRA claims, but federal statutes of limitations face no such bar.

In 1990, Congress enacted a general four year statute of limitations on certain civil claims brought under federal law. 28 U.S.C. § 1658. Specifically, the statute provides that "[e]xcept as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section [enacted Dec. 1, 1990] may not be commenced later than 4 years after the cause of action accrues." 28 U.S.C. § 1658(a). Thus, under federal law, any civil claims arising under federal law enacted after December 1, 1990, are barred by a four year federal statute of limitations unless specifically excluded from such a limitations period.

USERRA was enacted in 1994, but the statute which USERRA amended, the Veterans' Reemployment Rights Act ("VRRA"), was enacted prior to 1990. Initially, courts held that "Section 1658 applies 'only when Congress establishes a new cause of action without reference to preexisting law,'" and thus ruled that the four year statute of limitations did not apply to USERRA because USERRA referenced preexisting law, the VRRA. Akhdary v. City of Chattanooga, No. 1:01-C106, 2002 WL 32060140, at *6, 2002 U.S. Dist. LEXIS 26898, at *15 (E.D.Tenn. May 22, 2002) (quoting Zubi v. AT & T Corp., 219 F.3d 220, 225 (3d Cir.2000)).

However, in 2004, the United States Supreme Court's decision in Jones v. R.R. Donnelley & Sons Company, 541 U.S. 369, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004), provided new guidelines for the application of Section 1658. The Jones Court held that "a cause of action `aris[es] under an Act of Congress enacted' after December 1, 1990—and therefore is governed by § 1658's 4-year statute of limitations—if the plaintiffs claim against the defendant was made possible by a post-1990 enactment." Jones, 541 U.S. at 382, 124 S.Ct. 1836. In applying Jones to USERRA, several courts have held that USERRA broadened the rights available to litigants under the VRRA, thus subjecting USERRA to the Section 1658 statute of limitations. Aull v. McKeon-Grano Associates, Inc., No. 06-2752(HAA), 2007 WL 655484, at *4, 2007 U.S. Dist. LEXIS 13008, at *13 (D.N.J. Feb. 26, 2007); O'Neil v. Putnam Retail Management LLP, 407 F.Supp.2d 310, 316 (D.Mass.2005); Nino v. Haynes International, Inc., No. 1:05-CV-0602-JDT-TAB, 2005 WL 4889258, at *5-6, 2005 U.S. Dist. LEXIS 43971, at *17 (S.D.Ind. Aug. 19,...