Escalera v. Bard Medical

Filing 80

MEMORANDUM OPINION AND ORDER signed by Judge Joseph H. McKinley, Jr. on 3/14/19; granting 57 Motion for Summary Judgment: The motion by Defendant, Bard Medical, A Division of C.R. Bard, Inc. (Bard Medical), for summary judgment pursuant to Fed. R. Civ. P. 56 [DN 57 ] is GRANTED. A judgment will be entered consistent with this opinion. The Court finds that no oral argument is necessary in this matter. cc: Counsel(DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:16CV-00121-JHM
RICHARD ESCALERA

PLAINTIFF

VS.
BARD MEDICAL, A DIVISION OF C.R. BARD, INC.

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on a motion by Defendant, Bard Medical, A Division of
C.R. Bard, Inc. (“Bard Medical”), for summary judgment pursuant to Fed. R. Civ. P. 56. [DN
57]. Defendant also requests an oral argument on this matter. Fully briefed, this matter is ripe
for decision.
I. STANDARD OF REVIEW
Before the Court may grant a motion for summary judgment, it must find that there is no
genuine dispute as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of specifying the
basis for its motion and identifying that portion of the record that demonstrates the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the
moving party satisfies this burden, the non-moving party thereafter must produce specific facts
demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247–48 (1986).
Although the Court must review the evidence in the light most favorable to the nonmoving party, the non-moving party must do more than merely show that there is some
“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the nonmoving party to present specific facts showing that a genuine factual issue exists by “citing to
particular parts of materials in the record” or by “showing that the materials cited do not
establish the absence . . . of a genuine dispute[.]” Fed. R. Civ. P. 56(c)(1). “The mere existence
of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient;
there must be evidence on which the jury could reasonably find for the [non-moving party].”
Anderson, 477 U.S. at 252. It is against this standard the Court reviews the following facts.
II. BACKGROUND
Plaintiff, Richard Escalera (“Escalera”), filed a race and national origin discrimination
action pursuant to Title VII of the Civil Rights Act of 1964 and the Kentucky Civil Rights Act
against Bard Medical. Escalera was employed by Bard Medical from December 1, 2008 until
November 2, 2015. Escalera is Hispanic, of Mexican descent, and dark-skinned. Bard Medical
terminated Escalera on November 2, 2015, for alleged poor sales performance after issuance of a
performance improvement plan (“PIP”). At the time of his termination, Escalera was employed
as a Senior Specialist in the Interventional Urology Division (“IVU”) and was the only member
of the team who was not white.
Escalera began working for Bard Medical’s Statlock Division in December 2008 as a
territory manager. In January 2010, he was awarded “Rookie of the Year” for his 2009
performance. In 2010, Escalera was identified as a candidate for promotion to field sales trainer
and finished 13th out of 49 territory managers in his division. His 2010 performance evaluation
reflected that he exhibited a “strong desire to succeed and can be relied upon to get the job done
no matter the situation.” (DN 62, Exhibit 10.) In 2011, Escalera finished 10th in sales out of 49
territory managers. His 2011 performance review indicated that he had been “successful in

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bringing new life in a territory that had not seen this activity in many years.” (Smith Dep. Ex.
24.) In both his 2010 and 2011 performance evaluations, his manager rated him
“Meets/Exceeds” expectations.
In December 2011, Bard Medical sold the Statlock Division, and Escalera accepted a job
with the Interventional Urology Division (“IVU”) of Bard Medical which required him to work a
new territory and sell completely different products in 2012. The record reflects that Escalera’s
new territory had been vacant for six months and had “hemorrhaged” market share. (Smith Dep.
Ex. 25; DN 63-6 at 14-15.) At the end of 2012, Brad Smith became Escalera’s district manager.
In the 2012 sales year, Escalera was ranked 24 out of 25 territory managers in his division and
rated himself overall “Needs Improvement” on his 2012 Self-Assessment. While Escalera
received an overall “Meets/Exceeds Expectations” in his performance evaluation, Smith
identified several areas that “needs improvement” including the categories of Results
Orientation, Innovation, Internal Collaboration, Perseverance, and Persuasiveness and Sales
Ability. Additionally, Smith provided feedback regarding Escalera’s performance noting that his
“results in 2012 came up short” and the “strategy executed during that time frame did not yield
results and this will have to change.” (Escalera Dep. Ex. 27.)
Escalera testified that during his first meeting with Smith in 2013, Smith was combative
with Escalera and attempted to convince Escalera to quit his position. In March of 2013, Smith
sent a field visit letter to Escalera, copying Escalera’s supervisors, reporting on Smith’s visit with
him and allegedly including inaccurate information that placed Escalera in a bad light. (Escalera
Dep. Ex. 22.) Additionally, Escalera testified that while at a district sales meeting in Houston,
Texas, Escalera asked Smith whether Smith lived in Houston. Smith responded that he did not
because it was being taken over by Mexicans.

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In October 2013, Smith prepared a personal review of his territory managers. Escalera
maintains that despite having better numbers than a white territory manager Austin Ewing, who
was rated by Smith as having “upside potential,” and despite Escalera being ranked seventh
overall in sales at that time, Smith rated Escalera as having “very limited potential upside.” (DN
63-14 and DN 63-15, Escalera Dep. Exs. 15 and 16.) At the end of 2013, Escalera ranked fifth
out of a total of 26 sales representatives and first in his district. In his performance review,
Smith stated that Escalera had a “tremendous year in 2013, exceeding quota in stents and
EndoBeam.” Smith further stated that he did not “know if there is a person in the region that
worked as hard as Richard did in 2013” and classified his overall performance rating as
“Meet/Exceeds Expectations.” (DN 59, Escalera Dep. Exhibit 28.)
In 2014, Escalera finished the year $112,804 below quota in stone disease and $70,100
below quota in the emphasis categories. (Escalera Dep. Ex. 29.) He ranked 11th out of a total of
23 sales representatives. Escalera’s 2014 performance review assessed him overall
“Meets/Exceeds Expectations” and stated that Escalera “works well with all members of the
team.” (Escalera Dep. Ex. 29). However, the performance review indicated that he needed
improvement in two of his three “Annual Individual Goals” of Quota Performance and Territory
Growth, as well as Innovation, Technical/Professional Competence, and Problem Solving.
Smith provided the following feedback:
Coming off of a Top Performance in 2013, Richard will be the first
to tell you he is not happy with his results in 2014. Significant
drops in stent/balloon business from his top 3 accounts hindered
him from the start in 2015 [sic]. Richard was also set back with
two stent losses but he refused to throw in the towel. Richard was
able to maintain his laser fiber number coming within $7500 from
quota in spite of the massive loss of business from the Lifeline
Medical situation. Richard was able to put together several wins in
the last half of the year which will propel him forward in 2015.

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Richard’s sales funnel has the tendency to run thin at times. I
believe this is the byproduct of the laser focus he puts on accounts
to push them through to closure. The issue this causes is problems
with his cadence as he has gone months between conversions.
Richard is talented enough now to run multiple initiatives in
different phases of the sales cycle and push them all forward so
when one closes the next is in queue to close. I would like to see
him close an account every 30 days as I believe he has the talent
and market to allow this to happen.
(Id.) In the performance review, Smith also noted that “[d]emonstrating [his ability to navigate
through and drive complicated sales processes] and delivering quota will be keys to Richard
returning to the stage in 2015. I have full confidence in him and his ability to accomplish both of
these.” (Id.) In explaining his 2014 performance, Escalera represents that while he was 107% to
quota in sales in the first quarter of the year, he began to lose significant business from his
largest customer, Maury Regional Medical Center, as a result of issues it was having with Bard
Medical’s laser fibers.
Between October 2014 and January of 2015, Bard Medical released two new wires, the
Solo Plus and Solo Flex, and a new basket, the Skylite basket, onto the market. However, due to
production and design issues, the Solo Plus and Solo Flex wires were temporarily placed on a
production hold in April 2015 and were not available to the territory managers to use or sale to
their customers. At that time, Bard Medical made the decision to permit clients that were
previously using the Skylite basket without incident prior to the production hold to continue to
use and purchase the basket during the production hold. However, clients that were not existing
users of the Skylite basket before the production hold or had had issues with the product were
not permitted to use or purchase the Skylite basket during the production hold and were required
to wait until a new model of the basket came out.

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At the end of May 2015, Escalera was $124,446 below base in Core IVU and ranked
22nd out of 23 territory managers – ahead of a single territory manager who had been with the
company for less than two months. (Escalera Dep. Ex. 35.) Escalera was also the subject of a
customer complaint in March 2015 for improperly placing a Bard Medical product on a King’s
Daughters’ Hospital operating room shelf in violation of the customer’s acquisition procedures
which resulted in the ban of Escalera from that operating room for six months.
In explaining his 2015 performance, Escalera contends that his sales performance was
impacted significantly because Maury Regional Medical Center, Escalera’s largest customer,
decided to evaluate products produced by Bard Medical’s competitor, Boston Scientific.
Records reflect that the trial and the related loss of business was driven by either price or a
supply chain agreement between Boston Scientific and Maury. (Smith Dep. Ex. 64, 68.)
Escalera suggests that nothing in the record reflects that the loss of business was Escalera’s fault.
In early 2015, Escalera ranked seventh in the sale of one of Bard Medical’s new products, the
Skylite baskets. However, because of the product issues, two evaluations with Pikeville Medical
Center and Owensboro Health did not occur in March of 2015 as planned. Instead, Pikeville
Medical Center evaluated the products in July of 2015 and Owensboro Health did not evaluate
the products at all. Additionally, Escalera represents that he lost significant business from
Lifeline due to the failure of Bard Medical corporate and Lifeline to reach an agreement.
On May 21, 2015, Smith’s boss, Sandy Thompson, the Director of Sales for the entire
IVU Division, emailed Smith about Escalera noting that his numbers were significantly below
quota for the quarter. Within three weeks of receiving Thompson’s email, Smith drafted a
performance improvement plan (“PIP”) for review by Bard Medical’s human resource
department. On June 30, 2015, Bard Medical placed Escalera on the PIP. The PIP showed

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Escalera below base through the end of May 2015 by approximately $79,000. (Escalera Dep. at
Exs. 10, 15.) Escalera contends that the PIP is based on Escalera’s 2015 performance alone;
Bard Medical represents that the 2015 sales were just one factor in its issuance of a PIP.
The 60-day PIP required Escalera to achieve three sales-focused requirements: (1)
achieve 100% year to date territory base IVU sales within 60 days; (2) “within 30 days you will
have” completed a successful CORE IVU paid evaluation with all clinicians and material
managers for a conversion of at least $85,000 in business; and (3) have no further losses to core
business. (Smith Dep. Ex. 70.)

The PIP indicated that Escalera’s failure to demonstrate

significant improvement could lead to immediate termination of his employment. The PIP was
signed by Brad Smith and copies sent to Vice President of Sales Rob Hanson, Director of IVU
Sales Sandy Thompson, and Human Resource Senior Manager Cindy Wilder. (Id.) From
January through August 2015, the results reflected that Escalera was still at the bottom of the
rankings with a total average loss in Core IVU sales of $156,766. (Ottley Dep. Ex. E at 46-47.)
On September 16, 2015, Bard Medical placed Escalera on a PIP extension requiring him
to achieve 100% year to date quota in territory core IVU sales within the next 30 days or risk
being immediately terminated. Escalera testified that at the PIP extension meeting, Smith told
Escalera to look for a new job.

(See Smith Dep. Ex. 76.)

At his deposition, Escalera

acknowledged that he could not attain the result requested and communicated to Smith that he
would start looking for another job. (Escalera Dep. at 228-229.)
Bard Medical terminated Escalera on November 2, 2015, for poor sales performance.
During the period beginning January 1, 2010 and ending December 31, 2015, Escalera was the
only Hispanic/Latino employee to work in the IVU Division. Within a few months, Bard
Medical replaced Escalera with Jason Miller, a white employee.

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Escalera claims that he was terminated due to discrimination on the basis of race and
national origin. Specifically, Escalera alleges that he was replaced by a white male and that Bard
Medical treated him differently from similarly situated white employees because of his national
origin and race. Furthermore, Plaintiff contends that Defendant used Escalera’s PIP performance
as a pretext for firing him when the decisionmakers knew that his sales numbers were a direct
result of the company’s withdrawn products and medical devices. Bard Medical now moves for
summary judgment on all of Escalera’s claims.
DISCUSSION
Bard Medical argues that summary judgment on Escalera’s claim of race discrimination
under Title VII, 42 U.S.C. § 2000e–2(a)(1), and the Kentucky Civil Rights Act (“KCRA”), KRS
§ 344.010, should be granted because Escalera failed to state a prima facie case and failed to
show that the legitimate, nondiscriminatory reason for his termination was a pretext for unlawful
discrimination. Courts interpret Title VII and the KCRA using the same standards. Smith v.
Leggett Wire Co., 220 F.3d 752, 758 (6th Cir. 2000) ( “Because Ky. Rev. St. Chapter 344
mirrors Title VII of the Civil Rights Act of 1964 (“Title VII”), we use the federal standards for
evaluating race discrimination claims.”).
A. Prima Facie Case
Bard Medical first argues that Escalera failed to make out a prima facie case of
discrimination under Title VII. Title VII makes it unlawful for an employer “to discharge any
individual, or otherwise to discriminate against any individual with respect to . . . compensation,
terms, conditions, or privileges of employment, because of such individual’s race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Where, as here, a plaintiff offers only
indirect evidence of discrimination, he may establish a prima facie case under Title VII by

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showing: “1) he is a member of a protected class; 2) was qualified for the job; 3) he suffered an
adverse employment decision; and 4) was replaced by a person outside the protected class or
treated differently than similarly situated non-protected employees.”

Newman v. Federal

Express Corp., 266 F.3d 401, 406 (6th Cir. 2001).
If a plaintiff satisfies this requirement, the burden shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for the adverse action. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 410–11
(6th Cir. 2008); Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 703 (6th Cir. 2008). If the
defendant articulates such a reason, the burden then shifts back to the plaintiff to show by a
preponderance of the evidence that the proffered reason is pretextual. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). This means that in order to withstand a motion
for summary judgment, a plaintiff must show that there is a triable issue of fact upon which a
jury could reasonably find that more likely than not the employer’s reason is a pretext for
unlawful discrimination. Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083 (6th
Cir.1994).
For purposes of this motion, Bard Medical essentially concedes that Escalera is qualified
for his job, that termination is an adverse employment action, and that Escalera was replaced by
a white individual. However, Bard Medical argues that Escalera cannot prove the first element
of his prima facie case – that he is a member of a protected group. Bard Medical maintains that
Escalera testified that he considered himself to be white and that he identifies himself as such on
government documents. (Escalera Dep. at 28-29.)

Additionally, Bard Medical asserts that

Escalera’s sole claim in his EEOC charge is that between June 30 and November 2, 2015, he was
discriminated against based on his race. As such, Bard Medical argues that he cannot now

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proceed on any other basis, including national origin or color discrimination. Ang v. Procter &
Gamble Co., 932 F.2d 540, 546 (6th Cir. 1991), overruled on other grounds, Arbaugh v. Y & H
Corp., 546 U.S. 500 (2006). Bard Medical contends that Escalera could not be discriminated
against based on his “Mexican descent” because “Mexican” is not a race. Finally, Bard Medical
maintains that to the extent Escalera intends to salvage his claims by relying on his Mexican
national origin or his skin color, such attempt fails because he did not exhaust his administrative
remedies by filing such charges with the EEOC.
First, despite Bard Medical’s argument to the contrary, Escalera is a member of a
protected class, being Hispanic, Mexican-American, and dark-skinned.

Bard Medical

misrepresents Escalera’s testimony regarding whether he considered himself white. Escalera
testified that he considered his race as Mexican-American, and he identifies his race as
“Hispanic” on government documents. (Escalera Dep. 27-28.) However, Escalera explained
that during the period of time before government forms included Hispanic as a choice for race or
ethnicity, Escalera had to choose white because the form only provided choices of white, Native
American, or African American. (Id.)
Second, the Court rejects Bard Medical’s argument that Escalera cannot assert a claim in
this lawsuit based on national origin or color discrimination because Escalera only asserted in his
EEOC charge that Bard Medical discriminated against him based on his race. Prior to seeking
relief in federal court on a claim of employment discrimination, a Title VII claimant “must
explicitly file the claim in an EEOC charge or the claim must be ‘reasonably expected to grow
out of the EEOC charge.’” Burus v. Wellpoint Companies, Inc., 2010 WL 1253089, *3 (E.D.
Ky. Mar. 25, 2010). See also Bardwell v. Aerotek, Inc., 2018 WL 2470995, at *2 (W.D. Ky.
June 1, 2018)(citing Dixon v. Ashcroft, 392 F.3d 212, 217 (6th Cir. 2004)). Where facts with

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respect to the charged claim would prompt the EEOC to investigate a different uncharged claim,
a plaintiff is not precluded from bringing a suit on that claim. Davis v. Sodexho, 157 F.3d 460,
463 (6th Cir. 1998); Alazawi v. Swift Transp. Co., Inc., 391 F. Supp. 2d 626, 631 (W.D. Tenn.
2004).
The EEOC’s file related to Escalera’s charge includes Escalera’s Intake Questionnaire in
which he identifies himself as Hispanic or Latino. The questionnaire asks his race, but no option
exists for Hispanic, Latino, or Mexican.
“American/Mexican.”

Escalera then identifies his “National Origin” as

In Section 4 of the questionnaire, when asked the reason for

discrimination, the boxes for “Race,” “Sex,” and “Retaliation” are checked. In Section 8, he
identifies a “White/Male/American” as the person in the same or similar situation treated better
than him. The EEOC investigator in his October 26, 2015 memorandum does not mention race,
color, or national origin – only that Escalera claimed he was “being unfairly evaluated compared
to Eric Kanzinger [sic], a white employee.”
Although Escalera did not check the national origin or color box in his Charge of
Discrimination with the EEOC, the Sixth Circuit applies the “expected scope of investigation
test,” which analyzes whether “facts related with respect to the charged claim would prompt the
EEOC to investigate a different, uncharged claim.” Weigal v. Baptist Hosp. of East Tennessee,
302 F.3d 367, 380 (6th Cir. 2002). If so, “the plaintiff is not precluded from bringing suit on that
claim.” Id. In the present case, the Court finds that the EEOC charge coupled with the intake
questionnaire implicitly alleged national origin and color discrimination, without marking the
box for those alleged discriminatory practices, and was sufficient to “reasonably be expected to
lead the EEOC to investigate” Escalera’s claim of discrimination based on national origin or
color. Id. Escalera’s charge of discrimination put the EEOC on notice to investigate the charges

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of race, national origin, and color discrimination and put Bard Medical on notice that Escalera
had complaints against it for these related claims. See Crouch v. Rifle Coal Co., LLC, 2009 WL
3806404, at *3 (E.D. Ky. Nov. 13, 2009), clarified on denial of reconsideration, 2009 WL
4015927 (E.D. Ky. Nov. 19, 2009); Magana v. Tarrant/Dallas Printing, 193 F.3d 517 (5th Cir.
1999)(claim in EEOC charge that claimant was demoted because of his national origin, i.e.,
Mexican-American, read to embody a claim of discrimination based on race as well as national
origin).
Bard Medical’s comparison of the facts of this case to those of Ang v. Procter & Gamble
Co., 932 F.2d 540, 546 (6th Cir. 1991), is inaccurate.

Unlike Ang, Escalera provided

information relating to national origin to the EEOC during the interview and was not assisted by
counsel in preparing the EEOC charge. The Sixth Circuit in Ang specifically held:
Because Ang’s Asian race and Indonesian ancestry are closely
related and may have both contributed to any discrimination he
suffered, the district court could have concluded that an
investigation could reasonably include discrimination based on
race and national origin. The court, however, did not clearly err in
concluding that Ang’s failure to raise race discrimination in his
EEOC charge was a fatal flaw as Ang was assisted by counsel in
writing his charge, his charge did not specifically allege race
discrimination, and the EEOC did not investigate race
discrimination.
Ang, 932 F.2d at 546. “Charges of discrimination are frequently filed by lay people, and courts
recognize that subsequent actions should not be restricted by the failure of non-lawyers to attach
the correct legal conclusion to the EEOC claim, conform to procedural technicalities, or include
‘the exact wording which might be required in a judicial pleading.’” Daily v. American Founders
Bank, Inc., 667 F. Supp. 2d 728, 733 (E.D. Ky. 2009)(quoting Davis, 157 F.3d at 463).
Accordingly, Escalera provided sufficient evidence to establish his prima facie case of
discrimination based on race, national origin, or color.
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B. Legitimate, Non–Discriminatory Reason
Bard Medical has offered a legitimate reason for the termination of Escalera’s
employment. Bard Medical represents that it made a legitimate business decision to terminate
Escalera’s employment as a medical device salesperson after he failed to meet his quota three out
of the four years that he was in the UVI division, lost $156,766 in base sales in eight months in
2015, consistently ranked in last place in both his district and the entire division throughout
2015, and was the subject of numerous customer complaints. In fact, Bard Medical represents
that Escalera’s reported loss in sales was the highest of any UVI team manager by more than
$55,000. Accordingly, Bard Medical offered a legitimate, non-discriminatory explanation for its
termination of Escalera, thus destroying “‘the legally mandatory inference of discrimination
arising from the plaintiff’s initial evidence.’” Manzer, 29 F.3d at 1082 (quoting Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 255 n. 10 (1981)).
C. Pretext
Escalera contends that Bard Medical’s legitimate, non-discriminatory reason for his
termination is pretextual. In order to establish pretext, a plaintiff must show that the proffered
reason (1) had no basis in fact; (2) did not actually motivate the adverse employment action; or
(3) was insufficient to motivate that action. Manzer, 29 F.3d at 1084. Ultimately, to carry his
burden in opposing summary judgment, Escalera must produce sufficient evidence from which a
jury could reasonably reject Bard Medical’s explanation of why they terminated him. Chen v.
Dow Chemical Co., 580 F.3d 394, 400 (6th Cir. 2009). Escalera raises three arguments for the
proposition that Bard Medical’s proffered reasons were actually a pretext for discrimination.
1. Similarly Situated Employees
Escalera first argues that other white team managers who experienced comparable losses

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were treated better than he because they were not placed on a PIP or terminated.1 “Although a
plaintiff can prove pretext in several ways, evidence ‘[e]specially relevant to such a showing’ is
proof that an employer treated similarly situated Caucasian employees differently when they
engaged in acts of comparable seriousness.” Tenial v. United Parcel Service, Inc., 840 F.3d 292,
303 (6th Cir. 2016) (citing McDonnell Douglas, 411 U.S. at 804.).
“Employees are similarly situated when they are similar ‘in all relevant respects.’”
Guyton v. Exact Software North America, 2016 WL 3927349, at *10 (S.D. Ohio July 21,
2016)(quoting Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 753 (6th Cir. 2012). “This
standard does not require ‘exact correlation.’” Id. “Indeed, the Sixth Circuit has clarified on more
than one occasion that individuals need not have the same supervisor to be similarly situated.”
Guyton, 2016 WL 3927349, *10 (citing Louzon v. Ford Motor Co., 718 F.3d 556, 564 (6th Cir.
2013); Bobo, 665 F.3d at 751; Seay v. Tennessee Valley Auth., 339 F.3d 454, 479-80 (6th Cir.
2003) (noting that “the ‘same supervisor’ criterium” is not an “inflexible requirement”). “And
such a requirement would be illogical because it would essentially obviate the possibility of
employer liability in a small department in which a plaintiff’s ‘job responsibilities are unique to
his or her position’ or only one or a few employees share a common supervisor.” Guyton, 2016
WL 3927349, *10 (quoting Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th
Cir. 1998)); see also Louzon, 718 F.3d at 564 (holding that a same-supervisor requirement would
“render any plaintiff’s burden virtually impossible” against the defendant because each
supervisor managed “no more than a few individuals”); Arnold v. City of Columbus, 515 Fed.
1

Escalera argues that Bard Medical impermissibly relies on his performance for periods other than 2015
even though the relevant documents and testimony make clear that Escalera was put on a PIP and terminated solely
for his 2015 performance. (Escalera Dep. at 80.) Further, Escalera argues that Bard Medical fails to present
Escalera’s pre-2015 performance in a fair light given the applicable summary judgment standard. In determining
whether other employees are similarly situated, it is entirely appropriate to consider “[d]ifferences in job title,
responsibilities, experience, and work record.” Leadbetter v. Gilley, 385 F.3d 683, 691 (6th Cir. 2004). See
Campbell v. Hamilton County, 23 Fed. Appx. 318, 325 (6th Cir. 2001) (holding that differences in job title and
responsibilities, experience, and disciplinary history may establish that two employees are not similarly situated).

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Appx. 524, 532 (6th Cir. 2013). Instead, “in determining whether two employees are similarly
situated ‘in all relevant respects,’ the Court’s task is to ‘make an independent determination as to
the relevancy of a particular aspect of the plaintiff’s employment status and that of the nonprotected employee.’” Guyton, 2016 WL 3927349, *10 (quoting Louzon, 718 F.3d at 563-64).
Escalera maintains that numerous white team managers from the IVU Division had sales
below base for extended periods in 2015 and were well below quota for the year, but none of
them were placed on a PIP or otherwise disciplined or terminated. Escalera puts forth four
potential comparators that he asserts had similar base losses in core endourology: Eric
Kunzinger, Dan Santoro, Trevor Peters, and Eric Martin.2 Escalera acknowledges that for six
months between January 1 to June 30, 2015 he was $124,425.95 below base in core endourology
and placed on a PIP.

Escalera represents that from April 1 to September 30, 2015, Eric

Kunzinger was $151,851.89 below base; from August 1 to December 31, 2015, Dan Santoro was
$126,557.17 below base; from June 1, 2015 to December 31, 2015, Trevor Peters was
$122,866.29 below base; and from July 1 to December 31, 2015, Eric Martin was $199,904.97
below base. (Plaintiff’s Response at ¶ 28.)

McGregor Ottley, Bard Medical corporate

representative, also confirmed that these team managers from the IVU Division were not placed
on a PIP in 2015, notwithstanding the fact their sales were below base sales at various times
during the year. (Ottley Dep. 37, 50, 60, 64, 65.) Ottley testified that both Kunzinger and
Santoro were promoted in 2015.
Escalera contends that despite deficiencies in these team managers’ sales performances,
Bard Medical attributed their losses to Solo/Skylite production problems. For example, Ottley
2
Bard Medical argues that these four team managers are not similarly situated to Escalera because they
were supervised by different district managers. The record reflects that in 2015 there were only 23 team managers
and each district manager supervised approximately four individuals. Based on the case law discussed above and
for purposes of this motion, the Court will treat these four team managers as comparators despite the fact that they
were not supervised by Smith.

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testified that Santoro’s 2015 performance review indicated that the “Solo wire and Skylite basket
sales halt limited his ability [to] fend off” competitors in his base accounts. (Ottley Dep. at 61,
Ex. 15.) Similarly, Kunzinger’s 2015 performance review noted that his numbers “certainly
were not a reflection of his activities, efforts and/or strategies, and were more clearly a function
of the negative impact associated with the performance and ultimately supply issues with SOLO
and SKYLITE.” (Ottley Dep Ex. 2.) Peters’ 2015 performance review states that he “like many
in the sales force, was swept into the malaise of the Solo/Skylite sales halt early in 2015.”
(Ottley Dep. Ex. 13.) Ottley testified that this was a “time frame where [the TMs] weren’t able
to sell certain products” and that it “did have an impact on the sales force during that time
frame.” (Ottley Dep. at 53.)
However, a review of the “over base level” numbers of the four comparators and Escalera
in core endourology reflects significant differences in the severity of losses between the
comparators and Escalera during the January through June 2015 time period.

Escalera’s

utilization of different time periods for each comparator within 2015 is not appropriate when
examining the team managers’ performances given Bard Medical’s Solo/Skylite production
products. Using the same time frame for each comparator, the record reflects that between
January through June of 2015, Kunzinger was $55,626.89 below base, Santoro was $160,651.77
above base, Peters was $20,070.56 above base, and Martin was $79,932.38 above base. (Ottley
Dep. Exs. 3, 12, 14, 16.) These numbers demonstrate that the “losses” experienced by the
comparators during the same time period as Escalera are not substantially identical. Escalera’s
loss of base was $68,799.06 more than the closest comparator he identified.
Additionally, comparing the “over base level” numbers of the comparators and Escalera
between January through October 2015 reflects that at the time Escalera was terminated he had

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suffered significantly more loss over base than his identified comparators: Escalera was
$174,792.44 below base, Kunzinger was $101,132.60 below base,3 Santoro was $110,078.73
above base, Peters was $31,876.80 below base, and Martin was $1,611.79 below base. Because
of these significant differences in losses, no reasonable jury could find that these four
comparators and Escalera are similarly situated in all relevant respects.
The record further reflects that both Trevor Peters and Eric Martin began to experience
monthly losses toward the end of 2015. Ottley testified that given their end of the year sales
performances, both Peters and Martin were warned by their district managers that they would be
placed on a PIP if their sales numbers did not improve in 2016. (Ottley Dep. at 83.) Both Peters
and Martin resigned in 2016 prior to be placed on a PIP. Just as with Escalera, these team
members’ sales performances were identified by management as “needs improvement” and were
counseled that if their numbers did not improve a performance improvement plan would be
implemented. The differences in these team managers and Escalera are the timing of their losses
in 2015 and the fact that these employees resigned in 2016 before being placed on a PIP.
Finally, Escalera complains that despite Kunzinger’s poor sales performance for 2015, he
was promoted to district manager, while Escalera was terminated.

The Court previously

determined that Kunzinger is not a proper comparator based on his 2015 performance record.
Notwithstanding, when examining Bard Medical’s promotion of Kunzinger, the Court must
examine Kunzinger’s work and performance history with the company. Ottley testified that
Kunzinger was promoted based on the entirety of his career with Bard, notwithstanding his 2015
performance. (Id. at 40.) As the record reflects, during Kunzinger’s six years as a territory
manager, Kunzinger achieved net aggregate sales exceeding quota of approximately $1,000,000.
He finished first, third, and fifth in sales in 2012, 2013, and 2014 respectively and won 2012
3

Kunzinger assumed his new job as district manager at the end of August 2015.

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Territory Manager of the Year, joined Bard Leadership Development Program as a National
Field Sales Trainer, and became a President’s Club Award Winner. Kunzinger’s performance
history with Bard Medical is not comparable to that of Escalera for purposes of promotion to
district manager.
For these reasons, the Court finds that the four comparators and Escalera, as evidenced by
their respective performances, can be differentiated clearly. Consequently, these team managers
are not similarly-situated to Escalera.
2. Bard Medical Aware that Majority of Losses Beyond Escalera’s control.
Escalera argues that even assuming that a review of Escalera’s 2015 sales numbers were
a reason to discipline him, Bard Medical was well aware that a super-majority of Escalera’s sales
losses in 2015 were beyond his control. Escalera maintains that the documents produced by
Bard Medical show that he was approximately $124,000 below base at the time he was put on his
PIP. Of that amount, Escalera claims $36,000 is attributable to a loss of business with Lifeline as
a “result of Lifeline’s business model.” (Response at 28.) Escalera maintains that approximately
$58,500 was a result of Escalera’s largest customer, Maury, switching to a competitor based on
price or a supply chain agreement. Escalera maintains that, at most, he was responsible for a loss
of base of only $30,000. Escalera argues that because Bard Medical knew that issues with the
new products precluded sales of other products that would permit Escalera to regain his loss of
base, Bard Medical’s discipline of Escalera, including termination, was not reasonably informed
or considered.
Escalera cannot avoid summary judgment merely by disagreeing with Bard Medical’s
business decision to terminate him for poor performance. See Seeger v. Cincinnati Bell Tel. Co.,
LLC, 681 F.3d 274, 285–86 (6th Cir. 2012) (the pertinent issue is whether the employer made an

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honest, informed business judgment, not whether that business judgment was correct or ideal);
Stein v. National City Bank, 942 F.2d 1062, 1065 (6th Cir. 1991) (“It is not the function of
courts to judge the wisdom of particular business policies . . .”); Hartsel v. Keys, 87 F.3d 795,
801 (6th Cir. 1996) (“the law does not require employers to make perfect decisions, nor forbid
them from making decisions that others may disagree with”; rather, it forbids them only from
making decisions “for impermissible, discriminatory reasons”); Adams v. Tennessee Dept. of
Finance & Admin., 179 Fed. Appx. 266, 272 (6th Cir. 2006) (“Courts are not intended to act as
super personnel departments to second guess an employer’s facially legitimate business
decisions.”). “A plaintiff ‘must provide evidence not that [the defendant-employer] could have
made a business decision that others might think more fair, but that [the defendant-employer]
made the decision to terminate him because of his membership in a protected class.’” Lawroski
v. Nationwide Mut. Ins. Co., 981 F. Supp. 2d 704, 714 (S.D. Ohio 2013), aff'd in part, 570 Fed.
Appx. 589 (6th Cir. 2014) (quoting Norbuta v. Loctite Corp., 1 Fed. Appx. 305, 314–15 (6th Cir.
2001). Simply because Plaintiff suffered losses in sales as a result Solo/Skylite production
problems or a client’s decision to try a competitor’s product does nothing to cast doubt on Smith
or Thompson’s impression of Escalera’s work during the time in question.
3. Smith’s Alleged Statement
To establish pretext by arguing that the proffered explanation did not actually motivate
the discriminatory action, a plaintiff can “attack [ ] the employer’s explanation by showing
circumstances which tend to prove an illegal motivation was more likely than that offered by the
defendant. In other words, the plaintiff argues that the sheer weight of the circumstantial
evidence of discrimination makes it more likely than not that the employer’s explanation is a
pretext, or coverup.” Smith v. Leggett Wire Co., 220 F.3d 752, 759 (6th Cir. 2000) (quoting

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Manzer, 29 F.3d at 1084) (internal quotation marks omitted); Reed v. American Cellular, Inc., 39
F. Supp. 3d 951, 967 (M.D. Tenn. 2014). “In determining the relevance of discriminatory
remarks presented as circumstantial evidence, this Court looks to the identity of the speaker,
whether the remarks are isolated or ambiguous, and the temporal proximity of the remarks to the
adverse action.” Reed, 39 F. Supp. 3d at 967.
To the extent that Escalera argues that Smith’s alleged statement that Smith did not live
in Houston because it was “being taken over by Mexicans” is evidence that Bard Medical’s
proffered reason for termination is a pretext for discrimination, the Court finds that the isolated
statement is not evidence of discrimination. Even assuming that Smith made the statement, the
statement was isolated and was allegedly made in 2015 – two years prior to the adverse action.
This statement alone does not establish a pretext for Escalera’s termination.
For these reasons, even when making all justifiable inferences in favor of Escalera, the
Court concludes that Escalera has not shown Bard Medical’s proffered reason for his termination
was pretext for discrimination. Accordingly, Bard Medical is entitled to summary judgment as to
these claims.
IV. CONCLUSION
For these reasons, IT IS HEREBY ORDERED that motion by Defendant, Bard
Medical, A Division of C.R. Bard, Inc. (“Bard Medical”), for summary judgment pursuant to
Fed. R. Civ. P. 56 [DN 57] is GRANTED. A judgment will be entered consistent with this
opinion. The Court finds that no oral argument is necessary in this matter.

cc: counsel of record

March 14, 2019

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