Ebersole v. Novo Nordisk, Inc. et al

Filing 61

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that defendants Motion to Exclude the Expert Report and Testimony of Dr. Allen Self (#42) is DENIED as moot.IT IS FURTHER ORDERED that defendants' Motion to Strike the Untimely FourthReport of Dr. Allen Self (#56) is DENIED as moot.. Signed by District Judge Stephen N. Limbaugh, Jr on 4/24/13. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

AUBREE EBERSOLE,
Plaintiff,
vs.
NOVO NORDISK, INC., et al.,
Defendants.

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Case No. 1:11-cv-25 SNLJ

MEMORANDUM AND ORDER
Plaintiff filed this lawsuit against her former employer Novo Nordisk, Inc. (“Novo”) and
supervisor Murty Sitarama alleging violations of the Family and Medical Leave Act (“FMLA”)
and Americans with Disabilities Act (“ADA”). Count I is for violations of the FMLA against
both Novo and Sitarama, and Counts II and III are for violations of the ADA against Novo.
Defendants have filed for summary judgment. The matter has been fully briefed and is now ripe
for disposition. Also pending before the Court are defendants’ Motion to Exclude the Expert
Report and Testimony of Dr. Allen Self (#42) and Motion to Strike the Untimely Fourth Report
of Dr. Allen Self (#56).
I.

Background
The parties, for the most part, agree on the pertinent facts. Plaintiff worked as a sales

representative for Novo, which is a pharmaceutical company that manufacturers and distributes
medications that treat diabetes patients. Sales representatives are assigned geographic territories
within which they make “sales calls” to promote Novo products. A sales call is defined as a
face-to-face meeting with a health care provider during which the sales representative presents
one or more product attributes and requests that the health care provider prescribe a product.

Novo has express policies and procedures for recording the “sales calls” which its sales
representatives make to health care providers. The specific requirements are necessary both for
regulatory purposes and to ensure accountability for sales representatives, who generally work
without supervision. Novo maintains that it has a “zero tolerance policy” for call falsification,
and if Novo determines that a sales representative reports a call that does not satisfy the “call”
definition, the sales representative may be terminated. (On the other hand, plaintiff disputes that
Novo truly has a “zero tolerance policy,” and plaintiff further points out that the supposed policy
is not written anywhere.)
Plaintiff was diagnosed with rheumatoid arthritis (“RA”) when she was a child, and she
requires treatment with medication to keep her symptoms under control. She began working for
Novo in 2007. Her territory was southern, mostly-rural Missouri with two other sales
representatives — Jake Martin and Lance LaFont. In late 2008, she requested and was permitted
to take FMLA leave for six weeks, from January 21 to March 5, 2009, to receive treatment for
her RA. When she left work in January, her supervisor was Joseph Reichard, but when she
returned, Reichard had been terminated; defendant Murty Sitarama became her supervisor in
April 2009. Plaintiff returned to work with no restrictions and never requested medical leave
again.
Plaintiff met defendant Sitarama in April 2009. On their first “ride-along,” plaintiff says
that Sitarama made plaintiff’s health condition the focus of their conversation. He told her he
was aware of her medical condition and her medical leave and asked about her medications.
Plaintiff says Sitarama said that his boss, the regional manager, wanted to know whether it was
the “sick rep” (plaintiff) or the “other rep” (plaintiff’s co-sales-representative) who was more
effective. Plaintiff also says that, in July, Sitarama told her she should not take any vacation
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leave that year, and that plaintiff found his instruction to be intimidating. On the other hand,
plaintiff subsequently requested three days of vacation time in August, and Sitarama approved
the request.
Meanwhile, sometime in April 2009, Sitarama found out that sales representative Jake
Martin may have falsified a call by recording a visit to a Dr. Boda in Houston, Missouri on April
2, 2009. Dr. Boda had in fact relocated to a new practice in Joplin, Missouri. Sitarama launched
an investigation and determined that Martin had falsified a call to Dr. Boda by recording a call on
Dr. Boda after he had moved his practice to Joplin. In investigating sales calls made to Dr. Boda,
Sitarama also determined that, in September and October 2008, plaintiff had recorded three calls
on Dr. Boda in Houston after he no longer practiced there.
Plaintiff admits that she recorded calls on Dr. Boda without actually meeting Dr. Boda
face-to-face. She explains that her former supervisor, Joseph Reichard, told her she should
record the calls. In his deposition, Reichard explained that he “may have” told her to do that
because if she traveled a long distance to see a doctor, and the doctor did not show up, but she
spoke with staff instead, he may have said to log it. Reichard, however, readily acknowledged
that it would have been violation of company policy to do so. Plaintiff recorded three such calls
with Dr. Boda because she says she spoke with his nurse practitioner. Then, plaintiff’s partner,
Lance LaFont, told plaintiff not to record the calls until she got the nurse practitioner added to
Novo’s list of approved providers. At that point, plaintiff continued to meet with the nurse
practitioner, but she stopped recording the calls.
Novo terminated both plaintiff and Martin’s employment on August 11, 2009 for call
falsification. That same year, Novo similarly terminated six other representatives in plaintiff’s
region for falsifying call reports, and dozens more sales representatives across the country were
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terminated for falsely recording calls. Plaintiff claims that Novo actually terminated her because
she took FMLA leave and because of her medical condition.
II.

Legal Standard
Pursuant to Rule 56(c), a district court may grant a motion for summary judgment if all of

the information before the court demonstrates that “there is no genuine issue as to material fact
and the moving party is entitled to judgment as a matter of law.” Poller v. Columbia
Broadcasting System, Inc., 368 U.S. 464, 467 (1962). The burden is on the moving party. Mt.
Pleasant, 838 F.2d at 273. After the moving party discharges this burden, the nonmoving party
must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the nonmoving party bears the burden
of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury
to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986).
In ruling on a motion for summary judgment, the court must review the facts in a light
most favorable to the party opposing the motion and give that party the benefit of any inferences
that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.
1983). The court is required to resolve all conflicts of evidence in favor of the nonmoving party.
Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976).
Notably, the Eighth Circuit has recently articulated that “[t]here is no ‘discrimination case
exception’ to the application of summary judgment, which is a useful pretrial tool to determine
whether any case, including one alleging discrimination, merits a trial.” Torgerson v. City of
Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc). With these principles in mind, the
Court turns to the discussion.
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III.

Discussion
Plaintiff claims that (Count I) defendants violated the FMLA by harassing and

terminating her for taking medical leave, (Count II) Novo violated the ADA by harassing and
terminating her for her disability, and (Counts II and III) Novo violated the ADA by refusing to
accommodate plaintiff’s disability. Defendants contend that plaintiff’s claims are unsupported
and that they are entitled to summary judgment on all three Counts.
A.

Count I: FMLA Retaliation Claim

Plaintiff has brought an FMLA retaliation claim against defendants, as she “alleges that
the employer discriminated against [her] for exercising [her] FMLA rights.” Chappell v. The
Bilco Co., 675 F.3d 1110, 1115 (8th Cir. 2012).
1.

Direct Evidence of Discrimination

First, plaintiff contends that she has submitted direct evidence of discrimination in that
(1) Sitarama and his supervisor, Chris Connell, asked about her medical issues, (2) she has
shown that Sitarama warned plaintiff not to take any additional leave. A remark by a
decisionmaker is direct evidence of discrimination only if it shows “a specific link between a
discriminatory bias and the adverse employment action, sufficient to support a finding by a
reasonable fact-finder that the bias motivated the action.” Torgerson, 643 F.3d at 1045-46.
“Such evidence must be ‘strong’ and must ‘clearly point[] to the presence of an illegal motive’
for the adverse action.” Bone v. G4S Youth Services, LLC, 686 F.3d 948, 953 (8th Cir. 2012)
(quoting Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004)).
Defendants assert that, with respect to Sitarama and Connell’s questions about her
medical issues, their comments do not rise to the level of “direct evidence” of discrimination
because they evince nothing more than curiosity about an employee’s absence. The Court agrees.
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Reichard testified that his conversations with Connell were limited, and they did not reflect
anything aside from natural human curiosity. Sitarama’s ride-along conversation with plaintiff
— particularly in the context of two pharmaceutical representatives on a long drive in the country
— is the same. In or out of context, Sitarama and Connell’s questions about the nature of
plaintiff’s medical diagnosis and treatment do not point to the presence of an illegal motive.
Their comments and questions were facially neutral.
As for Sitarama’s July 2009 warning that plaintiff should not take any additional leave,
defendants maintain that his statement (which they concede for purposes of summary judgment
only) did not relate to medical leave or disability at all, but that it related to vacation time.
Indeed, the comment is facially neutral. Although it merits discussion in the context of indirect
evidence, the Court agrees that the warning does not meet the Eighth Circuit’s definition of direct
evidence.
2.

Indirect Evidence of Discrimination

There being no direct evidence of discrimination, the Court turns to analyzing her
retaliation claim under the McDonnell Douglas burden shifting framework. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). First, plaintiff must establish a prima facie case
by showing that (1) she exercised rights afforded by the Act, (2) she suffered an adverse
employment action, (3) there was a causal connection between her exercise of rights and the
adverse employment action. Phillips v. Mathews, 547 F.3d 905, 912 (8th Cir. 2008); Smith v.
Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir. 2002). Second, if plaintiff meets that burden,
then the burden shifts to the defendants “to come forward with evidence of a legitimate,
nondiscriminatory reason for the adverse action.” Phillips, 547 F.3d at 912. Defendants’ burden
“is not onerous, and the showing need not be made by a preponderance of the evidence. Id.
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(quoting Wallace v. Sparks Health Sys., 415 F.3d 853, 860 (8th Cir. 2005)). Third, if defendants
meet that burden, then plaintiff must set forth evidence “that creates an issue of fact as to whether
the asserted reason was pretext for discrimination.” Phillips, 547 F.3d at 912 (citing Smith, 302
F.3d at 833).
As to the first step, defendants argue that plaintiff cannot set forth a prima facie case of
discrimination because there is no causal connection between her exercise of FMLA rights and
her termination. The Eighth Circuit looks to the date the employer knew the employee planned
to use FMLA leave, which in this case is January 2009. See Sisk v. Picture People, Inc. 669 F.3d
896, 900 (8th Cir. 2012). Here, seven months passed before plaintiff was terminated. If plaintiff
relied on a temporal connection alone to show causality, her claim would fail, as, “in order for
temporal proximity alone to be sufficient, ‘the temporal proximity must be very close.’” Id.
(quoting Hite v. Vermeer Mfg. Co., 446 F.3d 858, 866 (8th Cir. 2006)). The Eighth Circuit has
held, for example, that periods as short as one month were too long to support causation. Smith
v. Fairview Ridges Hosp., 625 F.3d 1076, 1088 (8th Cir. 2010) (one month); Wisbey v. City of
Lincoln, 612 F.3d 667, 676 (8th Cir. 2010) (one month); see also Sisk, 669 F.3d at 901 (two
months).
Defendants argue plaintiff has not identified any “stray marks or actions that single out
Ebersole for different treatment than her peers or otherwise suggest some connection between her
leave and subsequent discharge.” (#44 at 5-6). This Court disagrees. As discussed above,
Sitarama’s comments identifying plaintiff as the “sick” representative and suggesting she should
not take any more leave that year do support plaintiff’s prima facie case. As a result, the burden
shifts to defendants to supply a non-discriminatory reason for plaintiff’s termination.

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Defendants’ non-discriminatory reason is that plaintiff violated Novo’s company policy.
Plaintiff admits that she violated Novo’s rules regarding proper reporting of sales calls on health
care providers. She argues that Novo’s reason for terminating her are pretext, however, because
(1) the falsified calls happened 10 to 11 months before her termination, (2) Novo’s “zero
tolerance policy” is not codified anywhere, (3) other employees suspected of falsifying calls were
not investigated, (4) plaintiff was told to falsify the calls by her supervisor, (5) plaintiff was at a
health care provider’s office for the calls she falsified, and (6) her former supervisor believes he
was fired for taking medical leave. Plaintiff maintains that such evidence establishes a question
of fact for the jury as to whether defendants’ alleged non-discriminatory reason was pretext.
The Court disagrees. An employee may prove pretext by demonstrating that (1) the
employer’s proffered reason has no basis in fact, (2) the employee received a favorable review
shortly before he was terminated, (3) similarly situated employees who did not engage in the
protected activity were treated more leniently, (4) the employer changed its explanation for why
it fired the employee, or (5) the employer deviated from its policies. Phillips, 547 F.3d at 913
(citing Stallings v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir. 2006)). Not all of plaintiff’s
“evidence” goes to support any of those methods of proving pretext, but the Court will discuss
each in turn.
First, with respect to the timing of the falsified calls, the undisputed facts make clear that
defendants undertook a thorough investigation upon learning that Dr. Boda had moved his
practice. There is careful documentation of the investigation as it progressed through the spring
and summer of 2009. Then, Novo terminated both plaintiff and her coworker (who made
falsified calls to the same doctor) on the same day. Plaintiff’s complaint about Novo’s failure to
codify its “zero tolerance policy” likewise has no weight here: Novo’s policies clearly and
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indisputably state that termination may result if calls are falsified, and Novo terminated six
representatives in plaintiff’s district and dozens of representatives nationally for that reason in
2009.
Next plaintiff suggests that she was unfairly targeted — and that Novo did not apply its
policy fairly — because other sales representatives in her district who were suspected of call
falsification were not investigated. In support, plaintiff points to evidence that her former
supervisor, Joe Reichard, had been investigating two sales representatives whom he suspected of
falsifying calls. Reichard, more than a month after he was terminated by Novo, emailed a Novo
human resources manager an Excel spreadsheet containing call records, but with no explanation
and no indication of whose call records they were. Reichard admits that he bore a grudge against
the two sales representative he was “investigating,” and he admits that he sent the information to
human resources seeking a larger severance. Further, Novo had no reason to believe that the two
representatives in question should be investigated. Ultimately, these two representatives do not
constitute similarly situated employees who are suitable for comparison. “The individuals used
as comparators must have dealt with the same supervisor, have been subject to the same
standards, and engaged in the same conduct without any mitigating or distinguishing
circumstances.” Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th Cir. 2003) (internal quotes omitted)
(quoting Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000)). The sales representatives in
question here had different supervisors, and, more importantly, Reichard never disclosed his
concerns to Sitarama. They are poor comparators because human resources, not Sitarama, made
the decision not to further Reichard’s alleged investigation. In contrast, Ebersole may be
compared to her non-disabled coworker, Jake Martin, both of whom had the same supervisor,
were subject to the same standards, and engaged in the same conduct. Indeed, Ebersole falsified
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three calls — Martin falsified one — but both were terminated. Notably, plaintiff failed to
distinguish or even mention Jake Martin’s similar termination, or any of the dozens of falsifiedcall-based terminations in her district and around the country.
Further, plaintiff argues that her violation of Novo’s call policy should be excused
because Reichard told her she could record the calls, and because she actually did meet with a
healthcare provider (a nurse practitioner). Setting aside the question of whether Reichard
actually did tell plaintiff to record the calls, plaintiff’s motives behind recording the calls are
irrelevant. No one disputes that Novo’s policy against such call falsification is clear. Novo has
serious regulatory and business reasons for requiring accurate business records, and the
company’s written policy specifically provides that “immediate termination” may result in cases
of “dishonesty and/or misstatement or falsification...of company business records.” Even
Reichard, who testified that he may have told plaintiff to record the calls to Dr. Boda, admitted
that such conduct would “absolutely” be a violation of Novo’s policy.
Finally, plaintiff argues that she has presented proof of Novo’s “pattern and practice of
discrimination” in that her former supervisor Joe Reichard says he was terminated because he
took FMLA leave. Plaintiff’s reliance on “pattern and practice” evidence is misplaced here, as
such proof is not employed in cases brought by individuals. See Craik v. Minnesota State
University Bd., 731 F.2d 465, 469 (8th Cir.1984) (“How the prima facie case is established and
the consequences of its establishment, however, depend on whether the case is (1) brought by a
single plaintiff on his or her own account or (2) a class action alleging a pattern or practice of
discrimination.”). See also Sandoval v. Am. Bldg. Maint. Indus., Inc., 552 F. Supp. 2d 867, 916
(D. Minn. 2008), aff’d in part, rev’d in part, 578 F.3d 787 (8th Cir. 2009); Bacon v. Honda of
America Mfg., Inc., 370 F.3d 565, 575 (6th Cir. 2004).
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In sum, plaintiff has not raised an issue of fact sufficient to show that Novo’s nondiscriminatory reason for terminating her employment was pretext. Instead, plaintiff admits that
she violated company policy; she cannot dispute that her coworker was fired on the same day for
the same reason; and she has not shown that Novo deviated from its policies in any regard.
Rather, it appears that Novo systematically investigated and terminated employees who were
found to have falsified calls, and plaintiff’s termination had nothing to do with FMLA leave that
she took seven months before. Summary judgment will thus be granted to defendants on this
Count.
B.

Counts II and III: ADA Harassment, Termination, Failure to Accommodate

Plaintiff’s Counts II and III claim that Novo harassed, terminated, and failed to
accommodate plaintiff because of her physical disability. “To establish a prima facie case of
discrimination under the ADA, an employee must show that she (1) is disabled within the
meaning of the ADA, (2) is a qualified individual under the ADA, and (3) has suffered an
adverse employment decision because of the disability.” Kallail v. Alliant Energy Corporate
Servs., Inc., 691 F.3d 925, 930 (8th Cir. 2012) (citing Huber v. Wal–Mart Stores, Inc., 486 F.3d
480, 482 (8th Cir. 2007)).
Plaintiff argues that defendants inquired into her disability on multiple occasions and
warned her not to take any more leave. She says that the warning that she should not take more
leave was a “direct refusal to provide the one accommodation that was needed and a reprisal for
taking the allowed leave.” (#51 at 15.) Plaintiff states that Novo’s “alleged reason for
termination doesn’t add up” and surmises that Novo “went hunting” for a reason to terminate her
after concluding that “her disability was more than it wanted to deal with.” (Id.)

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Plaintiff’s only alleged adverse employment decision is the decision to terminate her.
Defendant has supplied a non-discriminatory reason for her termination, which was discussed at
length with respect to plaintiff’s FMLA claim, and the same McDonnell Douglas burden shifting
analysis applies here as well. See Norman v. Union Pacific R.R. Co., 606 F.3d 455, 459 (8th Cir.
2010). Nothing suggests that Novo manufactured its non-discriminatory reason for terminating
plaintiff.
Next, plaintiff’s complaint that she was warned not to take leave does not suffice to create
an issue of fact here, as the alleged comment regarding plaintiff’s leave was specific to vacation
time — it had nothing to do with refusal to accommodate plaintiff’s disability. Plaintiff’s RA
does not appear to have affected her work at all; instead, the only time plaintiff requested an
accommodation — six weeks of FMLA leave to treat her RA — the accommodation was made.
Plaintiff returned to work with no restrictions. Although plaintiff states that Novo did not want
to “deal with” her condition, plaintiff is bereft of facts to support that statement: her only
example is that Novo granted her six weeks of FMLA leave seven months before she was
terminated. Plaintiff’s ADA claims related to her termination and accommodation therefore fail
on summary judgment.
Although plaintiff’s brief focuses almost entirely on her “wrongful discharge,” to the
extent plaintiff brings a hostile work environment claim, plaintiff must show that she is a
“member of the class of people protected by the statute, that [s]he was subject to unwelcome
harassment, that the harassment resulted from [her] membership in the protected class, and that
the harassment was severe enough to affect the terms, conditions, or privileges of [her]
employment.” Ryan v. Capital Contractors, Inc., 679 F.3d 772, 778 (8th Cir. 2012) (citing
Shaver v. Indep. Stave Co., 350 F.3d 716, 720 (8th Cir. 2003)). Plaintiff’s apparent harassment
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claim stems from defendant Sitarama’s questions and statements about her medical leave and RA
symptoms and treatment. Plaintiff testified that Sitarama stated
Aubree, I know you've been on medical leave. I know you have a medical
condition. You know, Chris Connell is aware of this and he wants to know -Chris Connell wants to know who is the effective rep in this territory. Is it you,
Aubree, or is it Lance. And so based on his comments and what he asked me, I
said, yes, I had been on a medical leave, and he wanted to know kind of the nature
of my medical condition, and so I felt like I had to tell him.
Further, plaintiff testified that Sitarama asked her questions about her medication.
Again, plaintiff’s brief does not specifically argue that she suffered from harassment in
violation of the ADA, but to the extent she does claim such harassment, plaintiff’s evidence does
not support such a claim. The Eighth Circuit has “repeatedly emphasized that anti-discrimination
laws do not create a general civility code.” Ryan, 679 F.3d at 779. “ A hostile work environment
must be both subjectively and objectively offensive, as well as ‘extreme in nature and not merely
rude or unpleasant.’” Id. (quoting Sutherland v. Mo. Dep’t of Corr., 580 F.3d 748, 751 (8th
Cir.2009)). “In determining whether a plaintiff has demonstrated a hostile work environment, we
consider the totality of the circumstances, including the frequency and severity of the conduct,
whether it is physically threatening or humiliating, and whether it unreasonably interferes with
the plaintiff's job performance.” Cross v. Prairie Meadows Racetrack & Casino, Inc., 615 F.3d
977, 981 (8th Cir. 2010). Sitarama’s alleged comments do not meet the standard set forth by the
Eighth Circuit; moreover, plaintiff does not contend that they do. As a result, this claim also fails
on summary judgment.
In sum, plaintiff has no direct evidence of discrimination based on her condition, and she
has failed to show that Novo’s non-discriminatory reason for terminating her was pretext.

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Plaintiff has no evidence that Novo failed to accommodate for her condition, and, to the extent
she claims hostile work environment, that claim also fails.
IV.

Conclusion
Summary judgment shall be granted to defendants on all counts, and a separate order and

judgment shall issue. Defendants’ pending motions related to plaintiff’s expert shall be denied as
moot.
Accordingly,
IT IS HEREBY ORDERED that defendants’ Motion to Exclude the Expert Report and
Testimony of Dr. Allen Self (#42) is DENIED as moot.
IT IS FURTHER ORDERED that defendants’ Motion to Strike the Untimely Fourth
Report of Dr. Allen Self (#56) is DENIED as moot.
Dated this

24th day of April, 2013.

UNITED STATES DISTRICT JUDGE

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