Lewis v. Watson Pharmaceuticals, Inc.

Filing 60

OPINION as to 54 ; Order and Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LYNETTE LEWIS,
Plaintiff,

Case No. 1:11-cv-241

v.

HON. JANET T. NEFF

WATSON PHARMA, INC.,
Defendant.
____________________________________/

OPINION
Plaintiff Lynette Lewis sued Defendant Watson Pharma, Inc., her former employer, alleging
gender discrimination. Now pending before the Court is Defendant’s Motion for Summary
Judgment (Dkt 54). Plaintiff filed a tardy response in opposition to the motion (Dkt 58),1 and
Defendant filed a reply (Dkt 57). After careful consideration, the Court concludes that Defendant’s
motion is properly granted for the reasons that follow.2
I. BACKGROUND
Defendant (hereinafter sometimes “the Company”) and its parent and affiliates, develop,
manufacture, market, sell and distribute a comprehensive array of generic and specialty brand

1

The Court, while under no obligation to consider Plaintiff’s tardy response brief (see Op.
& Order, Dkt 52), determines that even if Plaintiff had timely filed her brief, she has not submitted
sufficient evidence to survive Defendant’s motion for summary judgment.
2

The Court, within its discretion, decides the motion without oral argument. See W.D. Mich.
LCivR 7.2(d).

pharmaceutical products (Dkt 56, Df.’s Statement of Material Fact [SMF]3 ¶ 1). On December 22,
2004, Defendant hired Plaintiff to work as a pharmaceutical sales representative, and Plaintiff began
working in that position on January 3, 2005 (id. ¶ 2). The pharmaceutical sales representative
position required Plaintiff to generate sales of specific pharmaceutical products to physicians and
other health care providers in her assigned territory in West Michigan (id. ¶ 3).
In April 2009, Defendant began to sell a new urology drug named Rapaflo (SMF ¶ 21).
Plaintiff and the other pharmaceutical sales representatives who reported to James Kazmaier in
Michigan, Wisconsin and Ohio became responsible for generating sales of the urology products
Trelstar and Rapalfo (id. ¶ 22). Defendant used a national leader board to track the monthly sales
of Rapaflo generated by Plaintiff and its other pharmaceutical sales representatives (id. ¶ 23).
Defendant required its regional managers to complete performance reviews and a standard “Field
Contact Report” to review the performance of each of their sales representatives when they
accompanied the representatives on field visits (id. ¶ 24). Regional managers used the forms to
praise good performance, compare sales and call numbers to assigned goals, and provide feedback
for ways in which the representatives could improve their performance (id.).
In the June 2009 Field Contact Report, Kazmaier noted that as of the week ending June 5,
2009, Plaintiff ranked 96 out of 106 total sales representatives in nationwide sales of Rapaflo (SMF
¶ 27). Also in June 2009, Kazmaier issued a written discipline to Aaron Evans, a male sales
representative in Wisconsin who reported to him (id. ¶ 41). In the July 2009 Field Contact Report,
Kazmaier noted that as of the week ending July 3, 2009, Plaintiff ranked 103 out of 106 total sales

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Unless otherwise noted, the Court has cited to the material facts stated by Defendant that
Plaintiff did not dispute in her corresponding response (Dkt 58).
2

representatives in nationwide sales of Rapaflo, and Kazmaier warned Plaintiff that she had to
immediately improve her work performance (id. ¶ 32).
In the September 2009 Field Contact Report, Kazmaier noted that as of the week ending
September 4, 2009, Plaintiff ranked 102 out of 106 total sales representatives in nationwide sales
of Rapaflo and outlined several “action items” (SMF ¶¶ 37-38). On September 25, 2009,4 Kazmaier
issued Plaintiff a Written Warning based on her continued low call activity and poor sales of Rapaflo
(id. ¶ 40). Kazmaier indicated that he would reassess Plaintiff’s performance with respect to Rapaflo
on October 26, 2009 (Dkt 54-2, Kazmaier Dep. at 85).
Plaintiff alleges that the September 25, 2009 warning was not signed; that Kazmaier did not
deliver it to her until October 2, 2009; that he promised Plaintiff that he would re-write the warning;
that Rapoflo was overpriced and competed against Flomax, a successful and less expensive
pharmaceutical that would soon be priced as a generic drug; that it was not possible for Plaintiff to
achieve the demanded improvement and the warning was designed to assure her termination for an
alleged non-discriminatory cause; and that although Kazmaier promised “to help in any way that I
can,” Kazmaier ignored Plaintiff’s email and voice mail messages after October 2, 2009 (Amend.
Compl. ¶ 14(a)-(f)).
In December 2009, Defendant’s then-acting Vice President of Sales and Sales Operations
Lynne Amato determined that the Company had to realign its sales force to better support its product
line and sales strategy (SMF ¶ 44). That realignment resulted in a nationwide reduction of the

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Although Defendant’s undisputed statement of fact indicates that the Written Warning was
issued on “September 25, 2012” (Dkt 56 at 8), the Written Warning attached as Exhibit P (as well
as the context of the other factual statements) clearly establishes that the Written Warning was
issued on September 25, 2009.
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Company’s sales force from 291 sales representatives to 275 sales representatives (id. ¶ 45). The
position elimination process was based on the objective criteria of (1) geographic region; (2) written
disciplinary action related to performance within the preceding year; and (3) review of the most
recent performance evaluations (id. ¶ 46). Defendant considered each of its sales representatives
for the reduction in force pursuant to the above-referenced criteria. (id. ¶ 47). Human Resources
Manager Sally Cummings managed the position elimination process (id. ¶ 48). Defendant used the
above-referenced criteria to “automatically” eliminate the positions held by Plaintiff and Evans as
part of the nationwide realignment because both had received written performance-based warnings
during 2009 (id. ¶ 49). The effective date for the termination of Plaintiff’s employment with
Defendant was December 31, 2009 (id. ¶ 50).
Plaintiff initiated this lawsuit on March 11, 2011.5 Plaintiff, a married female and the mother
of two young children, alleges that she was a victim of Kazmaier’s gender discrimination, including:
a.

His statements that, “I’d rather have a young single guy instead of mothers
because men can work 24 hours a day.”

b.

His statement that, “If it were up to me, I’d rather have a team of single men
because they work hard, don’t have kids to worry about, and they’re 100%
job.”

c.

He replaced plaintiff with a male sales representative who had an
unsatisfactory work record.

d.

He assigned males to larger territories and/or territories with better
performing pharmaceuticals.

e.

He retained male sales representatives with low sales performance.

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Plaintiff initially named only Watson Pharmaceuticals as a defendant (Dkt 1). She filed an
Amended Complaint on March 30, 2011 to add Watson Pharma, Inc. and Watson Laboratories, Inc.
as defendants (Dkt 3). On May 3, 2011, the parties stipulated to dismissing Watson Pharmaceuticals
and Watson Laboratories, leaving Watson Pharma, Inc. as the only named defendant (Dkt 6).
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f.

He retained his own position despite . . . the low performance of his region.

g.

He did not place low performing males on performance improvement plans.

(Amend. Compl. ¶¶ 12-13). Plaintiff alleges gender discrimination under Title VII (Count I) and
Michigan’s Civil Rights Act (CRA) (Count II).
Following discovery, this Court conducted a Pre-Motion Conference in May 2012 on
Defendant’s proposed dispositive motion. The parties attempted mediation in October 2012 that was
ultimately unsuccessful, necessitating briefing and resolution of this dispositive motion.
II. ANALYSIS
A.

Motion Standard
A moving party is entitled to a grant of its motion for summary judgment “if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(a). The initial burden is on the moving party to show that
there is no dispute regarding any genuine issue of material fact. Slusher v. Carson, 540 F.3d 449,
453 (6th Cir. 2008). “Once the moving party supports its motion for summary judgment, the
opposing party must go beyond the contents of its pleadings to set forth specific facts that indicate
the existence of an issue to be litigated.” Id. In considering a motion for summary judgment, the
court must draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Slusher, 540 F.3d at 453. “The ultimate
question is ‘whether the evidence presents a sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail as a matter of law.’” Back v. Nestlé USA,
Inc., 694 F.3d 571, 575 (6th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986)).

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B.

Discussion
Plaintiff presents her discrimination claim under both federal and state law. Title VII

provides that it shall be unlawful for an employer to discriminate against any individual with respect
to the individual’s “compensation, terms, conditions or privileges of employment, because of such
individual’s ... sex ....”

42 U.S.C. § 2000e-2(a)(1).

Similarly, Michigan’s CRA prohibits

“discriminat[ing] against an individual with respect to employment, compensation, or a term,
condition, or privilege of employment, because of ... sex ....” MICH. COMP. LAWS § 37.2202(1)(a).
“‘The ultimate question in every employment discrimination case involving a claim of
disparate treatment is whether the plaintiff was the victim of intentional discrimination.’” Geiger
v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009) (quoting Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 153 (2000)). A plaintiff must offer “direct evidence of discrimination or
introduce circumstantial evidence that would allow an inference of discriminatory treatment.” Suits
v. The Heil Co., 192 F. App’x 399, 400 (6th Cir. 2006) (quoting Johnson v. Kroger Co., 319 F.3d
858, 864-65 (6th Cir. 2003)).
1.

Direct Evidence
Direct evidence “is that evidence which, if believed, requires the conclusion that unlawful

discrimination was at least a motivating factor in the employer’s actions.”

Jacklyn v.

Schering–Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999). For her
proffered direct evidence, Plaintiff relies on a statement by Kazmaier, purportedly made to her on
two occasions, that “he preferred to work with young, single men as opposed to moms because the
men have the ability to work 24 hours” (Dkt 58, Pl. SMF ¶ 66; Dkt 54-1, Pl. Dep. at 55). According
to Plaintiff, the first time Kazmaier made the statement was during the April 2009 field contact and

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the second time was only three days before he wrote the September 2009 warning (Dkt 54-1, Pl.
Dep. at 55, 63, 73, 82-83). Plaintiff concedes that no one else witnessed the purported comments
to her, although Plaintiff asserts that she was told that Kazmaier made a similar sexist statement to
another female sales representative, Kelly Ryan, and to Evans, the male sales representative who
also received a written performance-based warning (id. ¶ 67; Dkt 54-1, Pl. Dep. at 103-04, 128, 146,
149). Plaintiff does not contend that anyone else employed by Defendant discriminated against her
(Dkt 54-1, Pl. Dep. at 52-53, 124-26).
As a threshold matter, as Defendant point outs in its Reply (Dkt 57 at 8), Plaintiff cannot rely
on the hearsay statements of other employees to whom Kazmaier purportedly made the same sexist
remark as direct evidence of discrimination. See FED. R. EVID. 602; Smoot v. United Transp. Union,
246 F.3d 633, 649 (6th Cir. 2001) (“only admissible evidence may be considered by the trial court
in ruling on a motion for summary judgment”).
As for the comments Kazmaier made to Plaintiff, Defendant argues that these comments
(even if made) do not constitute direct evidence of sex discrimination where “it is undisputed Mr.
Kazmaier had no involvement or input in the decision to realign Watson’s sales force or to eliminate
Plaintiff’s position as part of that realignment” (Dkt 54 at 23). Plaintiff responds that Defendant
cannot insulate itself from Kazmaier’s sexism by asserting that Vice President Amato and human
resources manager Cummings were the decision-makers who terminated Plaintiff, especially in this
case where she was “automatically” terminated based on receipt of a written disciplinary action from
Kazmaier (Dkt 58 at 15).
“‘[S]tatements by nondecisionmakers, or statements by decisionmakers unrelated to the
decisional process itself [cannot] suffice to satisfy the plaintiff’s burden ...’ of demonstrating

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animus.” Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir. 1998) (quoting Price Waterhouse
v. Hopkins, 490 U.S. 228, 277 (1989) (O’Connor, J., concurring)); see also Phelps v. Jones Plastic
& Eng’g Corp., 20 F. App’x 352 (6th Cir. 2001) (relying on Bush). “Remarks at work that are based
on sex stereotypes do not inevitably prove that gender played a part in a particular employment
decision. The plaintiff must show that the employer actually relied on her gender in making its
decision.” Price Waterhouse, 490 U.S. at 251. See also Suits, 192 F. App’x at 403 (“[t]o prevail
based on direct evidence, plaintiff must show that the defendant employer acted on its discriminatory
animus, not just that it possessed one”).
A plaintiff can show discrimination by offering evidence of a “causal nexus” between the
ultimate decisionmaker’s decision to terminate the plaintiff and the supervisor’s discriminatory
animus. Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 350-51 (6th Cir. 2012) (quoting Madden
v. Chattanooga City Wide Serv. Dep’t, 549 F.3d 666, 677 (6th Cir. 2008)). Specifically, “if a
supervisor performs an act motivated by [discriminatory] animus that is intended by the supervisor
to cause an adverse employment action, and that if that act is a proximate cause of the ultimate
employment action, then the employer is liable under the [Act].” Staub v. Proctor Hosp., ___ U.S.
___; 131 S. Ct. 1186, 1194 (2011) (emphasis in original).
Defendant has supported its summary judgment motion by presenting Kazmaier’s testimony
that when he included the phrase on the September 2009 warning that Plaintiff’s failure to improve
her performance “will lead to further disciplinary action up to and including termination,” Kazmaier
did not have “any information” that the warning would “automatically” result in termination (Dkt
54-2, Kazmaier Dep. at 96-97, 112). Defendant has also provided the testimony of Vice President

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Amato, who similarly testified that in the fall of 2009, only herself, the Company president, and the
Human Resources team were privy to the reorganization plans (Dkt 54-2, Amato Dep. at 21-24).
Plaintiff bears the burden of going beyond the contents of her pleadings to set forth specific
facts that indicate the existence of an issue to be litigated. However, Plaintiff has not presented any
evidence that supports a causal nexus between Kazmaier’s warning and her subsequent termination.
Relying on DiCarlo v. Potter, 358 F.3d 408, 417 (6th Cir. 2004), Plaintiff argues that the mere
temporal proximity of Kazmaier’s second remark and his September 2009 warning is sufficient to
create a genuine issue of material fact (Dkt 58 at 15). Although DiCarlo addresses temporal
proximity, the temporal proximity considered was between a decision maker’s remarks and a
termination decision. DiCarlo therefore does not support Plaintiff’s burden to show a causal
connection between the remarks of Kazmaier, a non-decision maker, and her termination.
Indeed, the Sixth Circuit Court of Appeals in DiCarlo reiterated the point that comments
made by individuals who are not involved in the decision-making process regarding a plaintiff’s
employment do not constitute direct evidence of discrimination. See DiCarlo, 358 F.3d at 416
(citing Carter v. Univ. of Toledo, 349 F.3d 269, 273 (6th Cir. 2003) (“comments made by individuals
who are not involved in the decision-making process regarding the plaintiff’s employment do not
constitute direct evidence of discrimination”); Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 433
(6th Cir. 2002) (comments by manager lacking any involvement in the decision-making process do
not constitute direct evidence)).
In short, Plaintiff has not offered direct evidence of a discriminatory motive to terminate her
employment.

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2.

Circumstantial Evidence
Absent direct evidence, a plaintiff may attempt to prove a prima facie case using

circumstantial evidence. Ondricko v. MGM Grand Detroit, LLC, 689 F.3d 642, 653 (6th Cir. 2012)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)); see also Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). If the plaintiff successfully proves a prima facie
case, then the burden of production shifts to the employer to articulate some legitimate,
nondiscriminatory reason for the employment decision. Ondricko, 689 F.3d at 653 (citing Hazle v.
Ford Motor Co., 628 N.W.2d 515, 521-22 (Mich. 2001)). Once the employer carries this burden,
the burden of production shifts back to the plaintiff to show that the legitimate reasons offered by
the employer were not its true reasons, but rather were pretext for unlawful discrimination. Id.
Here, even assuming arguendo that Plaintiff’s evidence allows an inference of discriminatory
treatment, she has not refuted the legitimate, nondiscriminatory reason articulated by Defendant to
justify its adverse employment action.
The defendant in a reduction-in-force case must offer a non-discriminatory reason “‘why
someone else was preferred.’” Taylor v. Union Inst., 30 F. App’x 443, 448 (6th Cir. 2002) (quoting
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). “[T]he defendant bears only
the burden of production, not the burden of persuasion, in that the defendant must merely ‘articulate
a valid rationale’ for the adverse employment action.” Id. (quoting Hartsel v. Keys, 87 F.3d 795,
800 (6th Cir. 1996)). Defendant specifies that Plaintiff was terminated because of her poor work
performance (Dkt 54 at 26). Poor performance is a legitimate, nondiscriminatory reason for
terminating a person’s employment. See Imwalle v. Reliance Medical Prods., 515 F.3d 531, 546
(6th Cir. 2003).

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A plaintiff can refute the legitimate, nondiscriminatory reason articulated by an employer
to justify an adverse employment action “by showing that the proffered reason (1) has no basis in
fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to
warrant the challenged conduct.” Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000).
Regardless of which option is used, the plaintiff retains the ultimate burden of producing “sufficient
evidence from which the jury could reasonably reject [the defendant’s] explanation and infer that
the defendants intentionally discriminated against him.” Braithwaite v. Timken Co., 258 F.3d 488,
493 (6th Cir. 2001) (alteration in original) (internal quotation marks and citation omitted). Plaintiff
contends that she has shown pretext through her prior high evaluations, that a male employee
replaced her, and evidence that Kazmaier set “impossible goals for her” (Dkt 58 at 21).
Plaintiff’s prior evaluations, even if accurately characterized as “high,” do not demonstrate
that the proffered legitimate, nondiscriminatory reason has no basis in fact where Defendant’s 2009
reduction-in-force decisions were based on written disciplinary action related to performance
“within the preceding year” and review of “the most recent performance evaluations” (SMF ¶ 46).
Similarly, as Defendant points out, there is no evidence that the written discipline was insufficient
to warrant termination or constituted a pretext for gender discrimination where Plaintiff does not
contest either the underlying sales data or the written discipline Kazmaier issued to a similarly lowperforming male employee during the same period of time (Dkt 54 at 28).
Defendant contends that Plaintiff’s bald assertion that she was replaced with a male sales
representative ignores the only admissible evidence relating to the issue: its answer to Plaintiff’s
interrogatory stating that Defendant reassigned the accounts Plaintiff handled in 2009 to a
combination of male and female sales representatives in 2010 (Dkt 57 at 11, citing Ex. C,

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Interrogatory No. 15). Plaintiff’s evidence includes an undated job posting (attached to her response
at Dkt 58-2), which does not alone create a genuine issue of material fact that Defendant was
motivated to terminate her because of her gender. Alternatively, she also claims that her job duties
were assumed by two male sales representatives, “either Rich Felber ... or Kyle White” (Dkt 58 at
6, ¶ 54). In support of the Felber proposition, Plaintiff references only her own unsupported
statement during her deposition that “Rich Felber replaced me” (Dkt 54-1, Pl. Dep. at 129). In
support of the proposition that she was replaced by White, she references Vice President Amato’s
deposition testimony; however, neither the question posed to Amato nor Amato’s answer support
Plaintiff’s factual assertion:
Q.

So to your fairest recollection the person who was saving [the] Grand Rapids
territory when it came to Rapaflo would have been Kyle White?

A.

I think so, but I am not a hundred percent certain.

(Dkt 54-2, Amato Dep. at 10).
“It is now quite well-established that, in order to withstand a motion for summary judgment,
the party opposing the motion must present ‘affirmative evidence’ to support his/her position; a mere
‘scintilla of evidence’ is insufficient.” Mitchell v. Toledo Hosp., 964 F.2d 577, 584 (6th Cir. 1992)
(quoting Anderson, 477 U.S. at 257; Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.
1989)). Here, the record, taken as a whole and viewed in the light most favorable to Plaintiff, would
not allow a reasonable jury to disbelieve the reason given for Plaintiff’s termination and infer that
Plaintiff was instead terminated because of her gender. Plaintiff has simply not submitted sufficient
evidence to survive Defendant’s motion for summary judgment.

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III. CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment (Dkt 54) is granted.
An Order and corresponding Judgment will be entered consistent with this Opinion.

DATED: March 26, 2013

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

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