Rangel v. Sanofi Aventis U.S., LLC et al
Filing
39
MEMORANDUM AND ORDER granting 24 defendants' Motion for Summary Judgment. Signed by District Judge Carlos Murguia on 2/27/2012. (jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PAUL S. RANGEL,
Plaintiff,
v.
SANOFI-AVENTIS U.S., LLC, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
No. 10-1359-CM–KGG
MEMORANDUM AND ORDER
Plaintiff Paul “Steve” Rangel brings this action against defendants sanofi-aventis U.S., LLC,
and sanofi-aventis U.S., Inc., (collectively, “defendant”) alleging discrimination and retaliation in
violation of the Age Discrimination in Employment Act, (the “ADEA”), 29 U.S.C. § 621, et seq.
Before the court is Defendants’ Motion for Summary Judgment (Doc. 24). In short, defendant
argues that plaintiff was terminated as part of a reduction in force based on repeated poor
performance evaluations. Plaintiff argues that, despite his consistently demonstrating excellent
performance, defendant terminated plaintiff three months after plaintiff filed a discrimination claim
with the Kansas Human Rights Commission (“KHRC”), which he did after receiving no response to
his internal complaints of discriminatory treatment by his superior, Shelly Soupir.
Because plaintiff cannot prove his prima facie case or establish pretext, the court grants
defendant’s motion.
I.
Factual and Procedural Background1
1
The court construes the facts in the light most favorable to the non-moving party pursuant to
(continued...)
Plaintiff was a sales professional with a sanofi-aventis predecessor, and worked as an
Executive Sales Professional for sanofi-aventis from 2000 through December 30, 2008. From about
September 2006 through June 2008, he was directly supervised by District Sales Manager Shelly
Soupir. After June 2008 until his separation from employment in December 2008, plaintiff was
supervised by District Sales Manager Greg Ford. At all material times, sanofi-aventis was an
“employer” as defined by the ADEA.
Defendant issued new “Sales Professionals Procedures and Expectations” guidance effective
January 1, 2006. (Doc. 25-2.) These procedures, which applied to all sales teams nationwide,
emphasized a variety of topics in evaluating sales professionals’ performance, including work day;
sales calls/presentation; electronic call reporting of sales call activity; call planning; call continuum;
sampling activity; communication; and teamwork. Defendant argues that plaintiff’s sales style prior
to that point was largely amiable and unstructured. Although plaintiff and the team to which he was
assigned exhibited strong sales rankings, both Ms. Soupir and Mr. Ford repeatedly documented
deficiencies in plaintiff’s ability to implement defendant’s new procedures and expectations.2
In October of 2007, plaintiff received a Coaching Letter from Ms. Soupir. On November 7,
2007, and again on January 23, 2008, plaintiff received Field Coaching Reports concerning
ride-alongs with Ms. Soupir and plaintiff’s performance. On February 1, 2008, plaintiff received a
1
(...continued)
Fed. R. Civ. P. 56. The court has combined the facts stipulated to and proposed by both parties and
has included only those that are relevant, material, and properly supported by the record.
2
Defendant groups its sales professionals in “pods” assigned to call on the same physicians
in a geographic area. Defendant offers evidence that, because of the shared nature of sales
responsibilities, it was difficult to accurately determine an individual’s sales performance, as
opposed to the team. For purposes of this memorandum and order, the court assumes that plaintiff’s
individual sales numbers were strong.
-2-
memorandum from Ms. Soupir concerning plaintiff’s performance and his October 2007 Coaching
Letter. On May 13, 2008, plaintiff received his 2007 Performance Review, in which he received a
“Below” rating. On May 29, 2008, plaintiff received a Final Written Plan from Ms. Soupir. On June
13, 2008, plaintiff faxed his letter response to the Final Written Plan to Richard Kaplan in
defendant’s human resources department. On June 26, 2008, plaintiff received a Field Ride Follow
Up memorandum from his new District Sales Manager, Greg Ford. On July 15, 2008, plaintiff
received a Follow Up to Sales Reports Review memorandum from Mr. Ford. On July 23, 2008,
plaintiff received a memorandum from Mr. Ford concerning follow-up to his Final Written Plan. On
August 22, 2008, plaintiff received a Field Ride Follow Up memorandum from Mr. Ford.
On or about September 16, 2008, plaintiff filed his initial charge with the Kansas Human
Rights Commission (“KHRC”), alleging that he had been subjected to unlawful discrimination based
on his age. The complaint was dual-filed with the Equal Employment Opportunity Commission
(“EEOC”).
On September 19, 2008, plaintiff received a Field Ride Follow Up memorandum from Mr.
Ford. On October 9, 2008, plaintiff received his 2008 Mid-Year Review, which contained a
“Below” rating.
On December 1, 2008, defendant informed plaintiff that his employment would end on
December 30, 2008. At the time of his termination, plaintiff was 61 years of age. After his lay-off,
plaintiff filed an amended complaint with the KHRC and EEOC alleging additional age
discrimination and unlawful retaliation for his having participated in protected activity.
Each of the Soupir reports, reviews, letters, memoranda, and plans were critical of plaintiff’s
performance under the guidelines. To a large extent, so were the Ford reports. It was because of his
“below” rating for 2007 and the fact that he was on a Final Written Plan trending toward a “below”
-3-
rating for 2008 that he was included in defendant’s December 2008 Reduction In Force (“RIF”).
Plaintiff argues these negative assessments were not warranted: he had “stellar” sales numbers and
was performing his duties as a pharmaceutical sales representative at a level which placed him in the
top one percent worldwide for 2008. (Doc. 34 at 34.) He alleges that Ms. Soupir questioned when
plaintiff intended to retire, had a desire to get rid of plaintiff, and set about to make it happen.3 (See
Doc. 35-3 at 10.) He also notes that he was terminated within three months of filing his
discrimination charge, giving rise to an inference that he was terminated in retaliation for engaging in
a protected activity.
II.
Legal Standard
Summary judgment is appropriate if the moving party demonstrates that there is “no genuine
dispute as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). In applying this standard, the court views the evidence and all reasonable inferences
therefrom in the light most favorable to the nonmoving party. Adler v. Wal–Mart Stores, Inc., 144
F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986)). Factual assertions must be supported by citation to “materials in the record,
including depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A).
III.
Discussion
The ADEA provides that “it shall be unlawful for an employer . . . to discharge any
individual or otherwise discriminate against any individual with respect to his compensation, terms,
3
Ms. Soupir denies this.
-4-
conditions, or privileges of employment, because of such individual’s age . . . .” 29 U.S.C. §
623(a)(1). To prevail on an ADEA claim, plaintiff “must establish that age was a determining factor
in the employer’s challenged decision.” Lucas v. Dover, 857 F.2d 1397, 1400 (10th Cir. 1988)
(quoting EEOC v. Sperry Corp., 852 F.2d 503, 507 (10th Cir. 1988)). Indeed, plaintiff must show
that age was the “but for” cause of his termination. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,
129 S. Ct. 2343, 2351 (2009).
As in this case, where direct evidence of discrimination is absent, age discrimination claims
are to be analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See Sanders v. Sw. Bell Tel., L.P., 544 F.3d 1101, 1105 (10th Cir. 2008). Under
this framework, the plaintiff must initially establish a prima facie case of discriminatory discharge.
Then, defendant must offer a legitimate, nondiscriminatory reason for its employment decisions.
Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). If defendant does so, then the burden
reverts to plaintiff “to show that there is a genuine dispute of material fact as to whether the
employer’s proffered reason for the challenged action is pretextual i.e., unworthy of belief.” Marx v.
Schnuck Mkts., Inc., 76 F.3d 324, 327 (10th Cir. 1996).
A.
Prima Facie Claim
1.
Discrimination Claim
To establish a prima facie case of age discrimination, plaintiff must prove: (1) he is within
the protected age group; (2) he was doing satisfactory work; (3) he was discharged despite the
adequacy of his work; and (4) has some evidence the employer intended to discriminate against him
or her in reaching its RIF decision. Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1195 (10th
Cir. 2008) (setting out the burden to establish a prima facie case for an ADEA plaintiff affected by a
reduction in force).
-5-
Defendant focuses on plaintiff’s ability to establish the fourth element. The Tenth Circuit has
held that the fourth element may be satisfied by a showing that, during the RIF, the employer
discharged the plaintiff but retained or placed a younger employee in a similar position. Id. This
fourth element may be established by circumstantial evidence. Id.; see also Stone v. Autoliv ASP,
Inc., 210 F.3d 1132, 1138 (10th Cir. 2000).
In support of this fourth factor, plaintiff argues that (1) he was told he was being terminated
on December 1, three days before the corporate RIF was announced, therefore his termination must
have been separate from that action; (2) the statistics defendant offers regarding the effect of the RIF
pertain only to the General Therapeutic Business Unit, not the Metabolism Business Unit (“MBU”),
to which plaintiff was assigned until shortly before his termination; (3) regardless, the statistics do
not indicate the relative sales rankings of the persons who were selected for the RIF, and it is
doubtful that other sales reps in the top one percent of sales reps worldwide were targeted for
reduction. Plaintiff does not argue—or offer any evidence—that younger employees in similar
positions fared better under the RIF.
Defendant’s 2008 RIF was a uniformly applied, nationwide RIF. Pursuant to it, all sanofiaventis primary care sales professionals that had either (a) “below” or “less than” performance
ratings in two out of three years between 2005 and 2007 or (b) “below” or “less than” ratings in 2007
and were trending towards a “below” or “less than” rating for 2008, were separated from
employment effective December 30, 2008. (Doc. 25-1 at 3.)
The statistics defendant offers for how the RIF affected plaintiff’s sales team are not
controverted. And they clearly demonstrate that younger workers were not treated more favorably
under the RIF. For example, plaintiff’s work group, the General Therapeutics Business Unit –
Southwest (“GTSW”), contained 285 salespeople. Twelve people were displaced as a result of the
-6-
RIF. At the time of the RIF, 61% of GTSW representatives were under the age of 40. After the RIF,
61% were under the age of 40. At the time of the RIF, approximately 39% of the GTSW sales
representatives were age 40 or over. After the RIF, approximately 39% of the GTSW sales
representatives were age 40 or over. At the time of the RIF, approximately 16% of the GTSW sales
representatives were age 50 or over. After the RIF, approximately 16% of the GTSW sales
representatives were age 50 or over. (See Doc. 25-1 at 4–5.)
Plaintiff attempts to argue that the statistics provided are not the statistics that matter. He
argues defendants failed to provide statistics for the MBU, which was the group to which plaintiff
was assigned until June of 2008. It was while working in the MBU group that plaintiff allegedly
suffered discrimination. However, even if statistics for the MBU group were available, the basis for
plaintiff’s claim of discrimination (and retaliation) is his termination from employment. At his
termination he was part of the GTSW.
Plaintiff also faults defendant for failing to offer statistics regarding the sales rankings of
those who were subject to the RIF. As the court discusses further in the context of pretext, plaintiff’s
argument is a red herring. The RIF criteria are what they are: plaintiff does not controvert that his
“below” rankings put him within the criteria. And though he argues that these rankings were
unwarranted, he does so by pointing to his sales numbers. He does not offer any evidence to
controvert the allegations that he was failing to meet the defendant’s procedures and expectations.
Plaintiff’s suggestion that sales rankings would reveal a different criteria by which defendant could
have or should have conducted the RIF does not create a triable question of fact in this case.
Plaintiff does not offer any evidence other than conclusory speculation that defendant
retained or placed a younger employee in a similar position. There is no competent evidence from
which a jury could determine that defendant intended to discriminate against plaintiff in reaching its
-7-
RIF decision. The court determines that plaintiff cannot establish a prima facie case of
discrimination under the ADEA and defendant is entitled to summary judgment on this claim.
2.
Retaliation Claim
To establish a prima facie age retaliation claim, plaintiff must be able to show that (1) he
engaged in protected opposition to discrimination; (2) a reasonable employee would have considered
the challenged employment action materially adverse; and (3) a causal connection existed between
the protected activity and the materially adverse action. Hinds, 523 F.3d at 1202 (citing Montes v.
Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007)). In this action, defendant challenges
plaintiff’s ability to establish the third element.
Specifically, defendant notes that plaintiff received his 2007 “below” rating and his Final
Written Plan—which resulted in “an automatic ‘below’ rating for 2008,”—several months before he
filed his charge with the KHRC. In other words, both performance factors that resulted in plaintiff’s
inclusion in the RIF were established before plaintiff engaged in the protected activity.
Plaintiff argues that he engaged in protected activity by complaining internally to Jim Tully,
Claire Weber, Lisa Lucifero, Tom Starr, and Richard Kaplan. However, plaintiff offers no evidence
to controvert the fact that he never specifically complained in writing of age discrimination until he
filed his complaint with the KHRC in September 2008. (See Doc. 25-5 at 10, 12–18; Doc. 35-3 at
3–5, 8, 12–15.) His internal complaints were that Ms. Soupir’s treatment of him was unfair, her
criticisms were unwarranted, that she had an “agenda,” and, in his response to the Final Written Plan,
he suggested that he was the subject of “ongoing harassment.” (See id.; Doc. 35-3 at 4–6, 23; Doc.
25-19 at 6.) Plaintiff testifies in his deposition that he orally raised the possibility that Ms. Soupir
was treating him unfairly based on his age to Jim Tully (Ms. Soupir’s supervisor) and to Claire
Weber (human resources) late in 2007. (Doc. 35-3 at 14–15, 19–20.) He states that he also told Lisa
-8-
Lucifero (human resources), that he was in a “hostile work environment.” (Doc. 35-3 at 25.) But
general allegations of and vague references to harassment, like general complaints about one’s own
negative performance evaluation, do not constitute protected activity under the ADEA and will not
support a retaliation claim where, as here, there is no indication that any misconduct was motivated
by age. See Hinds, 523 F.3d at 1203; Anderson Acad. Sch. Dist. 20, 1122 F. App’x 912, 916 (10th
Cir. 2004).
In a final effort to save his claim, plaintiff suggests that after defendant received notice of the
charge, plaintiff was selected for the RIF despite his “stellar sales numbers and [Mr.] Ford’s
favorable assessment”—specifically that plaintiff had demonstrated “marked improvement.” (Doc.
34, at 34.) However, stellar sales numbers and Mr. Ford’s compliment do not create a genuine issue
of fact regarding the “below” ratings that put plaintiff within the RIF. And in fact, a thorough review
of Mr. Ford’s September 2008 Field Ride Follow-Up clearly shows that, although Mr. Ford found
plaintiff’s
marked improvement . . . good to see . . . it is the continual effort that will need to be
observed. Again, as I stated, the failure on your part to meet expectations set forth by
the company warranted a considerable amount of attention and effort on the parts of
myself, Mike Doherty, Lisa Lucifero, even the district DST Tim Martinez to address
the [gap] in your competencies for the job. Thus, it will necessitate a continued effort
on your part to change behaviors consistently versus demonstrate the desired behaviors for one day. .
. . Steve, I cannot stress enough how serious the situation is currently for you with our company as
well as how important it is for you to continue to show the type of effort I observed today.
(Doc. 25-25 at 3.)
In light of the facts properly supported by the record, plaintiff fails to raise an inference that
any protected activity was the likely reason for the termination: Although the RIF occurred after
plaintiff filed his KHRC charge, the performance ratings that rendered him subject to the RIF were in
place many months before the charge was filed. Plaintiff’s retaliation claim fails as a matter of law.
-9-
B.
Legitimate, Nondiscriminatory Reason for Termination
Because the court finds that plaintiff fails to establish a prima facie case, it need not go
further in the analysis. Nevertheless, plaintiff concedes—and the court agrees—that defendant has
met its burden to put forth a legitimate, nondiscriminatory reason for plaintiff’s termination.
C.
Pretext
Even if plaintiff was able to make out a prima facie case on his discrimination or retaliation
claims, he cannot establish pretext. “Pretext can be shown by ‘such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for
its action that a reasonable factfinder could rationally find them unworthy of credence and hence
infer that the employer did not act for the asserted non-discriminatory reasons.’” Morgan v. Hilti,
Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quoting Olson v. Gen. Elec. Astrospace, 101 F.3d 947,
951–52 (3d Cir. 1996)) (further quotations and citation omitted).
In an RIF case, a plaintiff can establish pretext by showing, among other methods, that: (1)
his termination was not in accordance with the RIF criteria allegedly used; (2) his evaluation under
the RIF criteria was falsified or manipulated; or (3) the RIF itself was pretextual and the employer
was not really reducing its workforce. Stone, 210 F.3d at 1140; Beaird v. Seagate Tech., Inc., 145
F.3d 1159, 1168 (10th Cir. 1998). Plaintiff shows none of these. He merely asserts that defendant’s
contention that his performance was deficient when Ms. Soupir was his supervisor is questionable
because plaintiff was achieving superior sales numbers. (See Doc. 34 at 31.) Plaintiff fails to
controvert the facts offered by defendant to establish that—sales numbers aside—plaintiff was not
meeting the expectations set out in the company’s guidelines for sales professionals.
The court has reviewed the evidence offered. Since 2006, plaintiff was given at least
-10-
fourteen detailed performance warnings and coaching documents based on plaintiff’s failure to
comply with defendant’s Sales Professional Guidelines. Many of these came from Ms. Soupir, but
they also came from Mr. Ford. Most of them were reviewed and/or approved by other individuals
such as Jim Tully, Soupir’s supervisor; Mike Doherty, Regional Sales Director; and Richard Kaplan,
Claire Weber, and Lucy Lucifero, all of human resources. And all of them expressed concern about
plaintiff’s performance; stressed that plaintiff was barely meeting the basic level of sales
expectations; and ultimately warned that disciplinary action was a possibility. (See, e.g., Doc. 2525.) Plaintiff does not allege that any of these other individuals “had it in for him” or discriminated
against him based on his age. (See Doc. 25-5 at 4.) And plaintiff does not offer any facts to
controvert the allegation that he was failing to meet the expectations set out in defendant’s
guidelines. To that extent, he has no basis to argue that his evaluation under the RIF criteria was
manipulated. Where there is no evidence of impermissible motive in defendant’s RIF, the fact that
plaintiff may have had good sales numbers does not create a genuine issue of material fact for the
jury on either plaintiff’s discrimination or retaliation claims. “[An employer] may chose to conduct
its RIF according to its preferred criteria of performance . . . and we will not disturb that exercise of
defendant’s business judgment.” Beaird, 145 F.3d at 1169; Lucas v. Dover Corp., Norris Div., 857
F.2d 1397, 1403–04 (10th Cir. 1988) (“This court will not second guess business decisions made by
employers, in the absence of some evidence of impermissible motives.”).
-11-
IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment (Doc.
24) is granted.
Dated this 27th day of February 2012, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge
-12-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?