White v. ACell, Inc.
| Decision Date | 01 September 2021 |
| Docket Number | Civil Action GLR-20-173 |
| Parties | TODD WHITE, Plaintiff, v. ACELL, INC., Defendant. |
| Court | U.S. District Court — District of Maryland |
THIS MATTER is before the Court on Defendant ACell, Inc.'s (“ACell”) Motion for Summary Judgment (ECF No 51). The Motion is ripe for disposition and no hearing is necessary. See Local Rule 105.6 (D.Md. 2021). For the reasons outlined below, the Court will grant in part and deny in part ACell's Motion.
On September 16, 2013, ACell hired Plaintiff Todd White, who is African American, as a sales representative. (Offer Letter at 1, ECF No. 51-33). In this role, he was responsible for selling medical devices produced by ACell, focusing his sales on surgical grafts and powders utilized by vascular colorectal, plastic, and general surgeons. (Decl. Todd White [“White Decl.”] ¶ 3, ECF No. 56-17). In 2014, White began reporting to Area Manager Anthony Bonacorso, who in turn reported to Region Manager Mike Snyder. (Todd White Dep. [“White Dep.”] at 44:6-11, ECF Nos. 51-2, 56-13; Anthony Bonacorso Dep. [“Bonacorso Dep.”][1] at 190:19-20, ECF Nos. 51-21, 56-5).
ACell has introduced evidence reflecting that during his time with the company, White consistently fell short of his sales targets. For example, one exhibit to ACell's Motion is a spreadsheet containing White's sales figures as compared to his goals for each period. The spreadsheet indicates that in 2014, White had $344, 091 in sales, as compared to a budget[2] of $696, 870; in 2015, White had $620, 467 in sales, as compared to a budget of $681, 710; in 2016, White had $673, 373 in sales, as compared to a budget of $612, 000; and in 2017, White had $652, 906 in sales, as compared to a budget of $728, 880. (White Sales Performance Spreadsheet [“Sales Spreadsheet”] at 3-7, ECF No. 51-11).[3]
White counters that his sales fell below his target goals because he was responsible for an unusually large sales territory. (White Decl. ¶ 4, ECF No. 56-17). Additionally, White asserts that Bonacorso conceded that White was growing the business in that territory at a “decent” rate.[4] White also notes that he was nominated for a prestigious company award in 2014, which belies the argument that his performance was below par that year. (Spievack Award Announcement at 3, ECF No. 56-29). White also points to a series of text messages and other communications from Bonacorso between June 2016 and January 2018 in which Bonacorso repeatedly praises White. (See ECF Nos. 29-34).
In March and November 2017, White was banned from selling ACell products in two health systems due to his alleged misconduct while on location at hospitals in those health systems. The first ban related to a January 2017 incident in which an ACell customer, Henry Ford Health System (“Henry Ford”), accused White of throwing his shoe at a hospital employee at the Henry Ford location in Wyandotte, Michigan. (See Mar. 29, 2017 Henry Ford Letter [“Ford Letter”] at 1, ECF No. 51-5). Sales representatives visiting the location are required to offer personal collateral, generally car keys or a driver's license, in exchange for borrowing hospital scrubs for the duration of their visit. (White Dep. at 200:14-201:6). White states that he was not carrying his license and did not want to provide the keys to his new car, so instead he placed his shoes on the counter and offered them as collateral. (Id. at 201:8-203:11). The hospital representative took exception to this and voiced her displeasure. (Id. at 203:11-204:17).
White asserts that the following day, the hospital's surgical director called White and told him that he would (Id. at 204:21-206:18). Following the incident, White was “no longer welcome” in Henry Ford hospitals, (id. at 208:3-6), and Henry Ford formalized the decision with a permanent ban on March 29, 2017, (Ford Letter at 1). Snyder testified that at the time, he credited White's description of the incident, i.e., that the Henry Ford representative had overreacted to White's reasonable behavior. (Snyder Dep. at 169:21-171:19).
The incident preceding the second ban occurred on October 31, 2017. On that day, White was in the operating room at a Beaumont Health System (“Beaumont”) hospital in Farmington Hills, Michigan (“Beaumont Farmington”), when a surgeon, Dr. David Fertel, began an argument with the hospital's surgical director, Steven Witkowski, relating to the use of certain ACell products. (White Dep. at 247:1-248:12). During the argument, Fertel called on White to confirm that the ACell products involved in the disagreement were exempt from certain regulations that would have affected Fertel's treatment of the patient. (Id. at 248:19-249:12). White did so, and Fertel proceeded with the course of treatment, but Witkowski directed White to come and speak to him before he left. (Id. at 249:7-20).
White testified that as he left, he called Bonacorso and informed him that they had “a major problem.” (Id. at 250:11-13). White then encountered Witkowski, who informed White that he wanted to talk to White's manager. (Id. at 250:16-251:4). White provided Witkowski with Bonacorso's contact information. (Id.). Bonacorso testified that when White called him, he overheard White “screaming” at Witkowski. (Bonacorso Dep. at 139:14-140:7). However, Fertel testified that White was “professional” and “non-confrontational” in his interactions at the hospital that day. (David Fertel Decl. ¶ 5, ECF No. 56-39). Snyder and Bonacorso agreed that regardless of whether White was technically correct in supporting Fertel, he had handled the incident incorrectly by becoming involved. (Bonacorso Dep. at 139:3-23; Snyder Dep. at 195:8-18, 198:6-13).
Approximately one month later, Witkowski sent ACell a letter banning White from selling products at Beaumont's Farmington location. (Nov. 28, 2017 Beaumont Letter at 1, ECF No. 56-40). Although the letter referred to only the Farmington location, White testified that he believed he had been banned from “the whole Beaumont system, not just Farmington.” (White Dep. at 264:7-9, 272:2-11). Snyder and Bonacorso shared this understanding. (Snyder Dep. at 177:14-19; Bonacorso Dep. at 142:17-19). White speculates that Bonacorso persuaded Witkowski to ban White from the Beaumont system. (White Dep. at 262:14-21, 263:21-264:9). As a result of the two bans, ACell transferred White's Henry Ford and Beaumont accounts to another sales representative. (May 15, 2017 Email Exchange at 2-3, ECF No. 51-6; 2017 Sales Totals Spreadsheet at 2, ECF No. 5134 ()).[5]
Two days after the incident at Beaumont Farmington, on November 2, 2017, ACell placed White on a performance improvement plan (“PIP”). (White Performance Improvement Plan [“White PIP”] at 2, ECF No. 51-7). The PIP cited three “performance issues” that White needed to improve: (1) White's “sales and activities (speaker programs, lunches, dinners) outside of current business have greatly reduced”; (2) White's removal from the Henry Ford and Beaumont facilities; and (3) insufficient sales volume.[6] (Id.). Under the heading “Suggested Sales generating activities, ” the PIP directed White to (Id. at 3). The PIP warned that if White's “performance does not improve to the required levels or [he does] not demonstrate efforts to reach these levels, [his] employment may be terminated during or at the end of' the 90-day PIP. (Id.).
White's sales performance deteriorated considerably after ACell placed him on the PIP. In November 2017, White had $29, 913 in sales, as compared to a budget of $60, 740; in December 2017, facing the same budget, White had just $13, 424 in sales; and in January 2018, White had $14, 204 in sales, as compared to a budget of $46, 500. (Sales Spreadsheet at 6-7). The shortcoming in White's sales following the PIP was consistent with his removal from the Beaumont accounts, as sales to Beaumont comprised approximately two-thirds of White's total sales for the first ten months of 2017. (See White Account Sales at 1, ECF No. 56-46). White ultimately fell short of his 2017 annual budget by more than $75, 000. (Sales Spreadsheet at 6-7).
On January 18, 2018, White, through counsel, sent a letter to ACell's in-house counsel stating that he was considering filing “a complaint with the EEOC and the Michigan Department of Civil Rights” based on alleged race and age discrimination. (Jan. 18, 2018 Letter from Gonek [“Gonek Letter”] at 1, ECF No. 51-13). The letter referenced a racially insensitive remark by Snyder and several instances where White was treated less favorably than white comparators. (Id. at 2). In a footnote to the letter, White's counsel reported that White had “[come] across a photograph taken several years ago showing Mr. Bonacorso conducting a meeting of various employees of ACell where Mr. Bonacorso was encouraging off-brand marketing, [7] which is the subject of a Department of Justice Investigation.” (Id. at 1 n.1).[8] The off-label marketing at issue in the photographs involved alleged marketing of ACell's products for fistula repair, a usage for which they are not indicated. (Bonacorso Photographs at 2-4, ECF No. 51-14; William Hrubes Dep. [“Hrubes Dep.”] at 55:13-56:7, ECF Nos. 51-23, 56-2). White's counsel noted that “pursuant to ACell's compliance procedures Mr. White [was] under...
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