Sivertson v. HeartFlow, Inc.
MEMORANDUM AND ORDER - Defendant's Motion to Strike, Filing No. 55 , is denied. Defendant's Motion for Summary Judgment, Filing No. 41 , is granted in full. The Court will enter a separate judgment. Ordered by Senior Judge Joseph F. Bataillon. (LKO)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRIAN L. SIVERTSON,
MEMORANDUM AND ORDER
HEARTFLOW, INC., a Delaware
The plaintiff, Brian L. Sivertson, claims his former employer, Heartflow Inc.,
discriminated against him based on his sex under Title VII of the Civil Rights Act of 1964
(as amended), 42 U.S.C. § 2000e et seq., and the Nebraska Fair Employment Practice
Act, Neb. Rev. Stat. § 48-1101 et seq., and discriminated against him based on his age
under the Age Discrimination in Employment Act of 1967 (as amended), 29 U.S.C. § 621
et seq., and the Nebraska Age Discrimination in Employment Act, Neb. Rev. Stat. § 481001 et seq. Heartflow moves for summary judgment on all of Sivertson’s claims. Filing
Heartflow also moves to strike one of the exhibits Sivertson submitted in
opposition to its summary judgment. Filing No. 55. For the reasons stated herein, the
Court denies the motion to strike and grants Heartflow’s motion for summary judgment.
Sivertson began working for Heartflow in 2017. Filing No. 43-1 at 25. He started
as a Clinical Account Manager and then became a Business Development Manager
(“BDM”) on or around November 7, 2017. Id. at 29. As a BDM, Sivertson was responsible
for carrying out sales and marketing to customers in Minnesota, North Dakota, South
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Dakota, Nebraska, Iowa, and Oklahoma. Id. at 31–32. Sivertson worked under a District
Sales Manager, Scott Burger, for most of the territories, id. at 31, except for the territory
of Oklahoma, where he worked under a different manager. Id. at 32.
Toward the end of 2018 and the beginning of 2019, Heartflow engaged in a
restructuring. Filing No. 43-6 at 1. At the time, Andy Wallman was the Director of
Commercial Operations and was engaged in the restructuring. Id. Heartflow contended
it wanted to focus its remaining sales resources on the customers with the most growth
potential. Id. at 1–2. Sivertson argues his geographic territory remained strategically
important for Heartflow even at the time of the restructuring. Filing No. 50 at 5. Wallman
analyzed which districts should have both a District Sales Manager and a BDM, and which
districts could not support both. Filing No. 43-6 at 2. Wallman’s analysis indicted that the
territory in which Burger was District Sales Manager and Sivertson was BDM had the
least growth potential. Id. Therefore, Wallman recommended to an executive named
Mike Buck the elimination of Sivertson’s BDM position in Burger’s territory. Id. Buck
accepted this recommendation and terminated Sivertson’s position effective January 22,
2019. Filing No. 51-1 at 1, 11. Sivertson’s was the only territory to not continue a BDM
position, id. at 11, but all other BDM positions were eventually transitioned into the title of
Strategic Account Manager (“SAM”). Filing No. 43-6 at 3. The parties dispute whether
this transition from BDMs to SAMs occurred simultaneously with Sivertson’s termination
or after he had been fired. Id.; Filing No. 50 at 2. Heartflow never replaced Sivertson’s
former BDM position with a SAM position or any other new position. Filing No. 43-6 at 4.
Heartflow explained to Sivertson that the termination of his employment was not
performance-based, and he was eligible for rehire. Filing No. 43-1 at 59–60. Sivertson
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thereafter applied for an open SAM position in San Francisco, California. Filing No. 43-2
Heartflow ultimately decided to hire another male applicant named Anthony
Campanile instead of Sivertson for the California SAM position. Id. The Heartflow
executive who hired him testified he believed Campanile was more qualified than
Sivertson for the role. Id. Sivertson did not apply for any other positions at Heartflow.
Filing No. 43-1 at 87–88, Filing No. 50 at 4. Sivertson was over the age of 40 and male
during the time of his employment and termination. Filing No. 1 at 3; Filing No. 43 at 23.
Sivertson admits that Buck never made direct comments about his sex or age.
Filing No. 43-1 at 78. Rather, he alleges Buck favored younger, female employees. Filing
No. 1 at 3. He points to three female employees, Colleen Kestner, Rajah Brazda, and
Michelle Cabrera, who were retained and later promoted around the time he was fired as
proof of sex and age discrimination. Filing No. 43-1 at 82–83, 90. Kestner and Brazda
were both BDMs who were later promoted to Implementation Managers with Heartflow.
Filing No. 43-12 at 1–2. Cabrera was a senior BDM who was the only female to be
promoted to SAM.
Filing No. 43-1 at 90. Sivertson contends that Buck was later
terminated by Heartflow for his inconsistent management style, playing favorites with
women, and bullying. Filing No. 43-2 at 20.
Sivertson takes issue with one particular meeting in which he claims Buck
discriminated against him. Filing No. 43-1 at 67; Filing No. 43-5 at 2–3. The meeting
occurred on November 13, 2018, with the purported purpose of identifying best practices
and successes for BDMs to help Heartflow grow in the upcoming year. Filing No. 43-5 at
2. However, during the nearly 14-hour meeting, Buck personally attacked Sivertson for
spending too little time traveling and tending to incorrect accounts.
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described Buck as “intimidating, hostile, and harassing” during the meeting. Id. Buck
was not as critical of Cabrera and Kestner during this meeting. Filing No. 43-2 at 11.
Sivertson filed charges of sex and age discrimination with the Equal Employment
Opportunity Commission and Nebraska Equal Opportunity Commission. Filing No. 1 at
3. He received Notice of Right to Sue from the EEOC on December 22, 2020, dated
December 18, 2020, and commenced this lawsuit shortly thereafter. Id. at 3–4. Heartflow
now moves for summary judgment on all claims. Filing No. 41.
A. Standard of Review
Summary judgment is appropriate when, viewing the facts and inferences in the
light most favorable to the nonmoving party, the “materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials” show that “an adverse party cannot produce
admissible evidence to support” a fact essential to the nonmoving party’s claim. Fed. R.
Civ. P. 56(c)(1)(A) & (B). The plain language of Rule 56(c) mandates the entry of
summary judgment after adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the burden of proof at trial. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“The movant ‘bears the initial responsibility of informing the district court of the
basis for its motion, and must identify ‘those portions of [the record] . . . which it believes
demonstrate the absence of a genuine issue of material fact.’” Torgerson v. City of
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Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quoting Celotex, 477 U.S. at
323). If the movant does so, “the nonmovant must respond by submitting evidentiary
materials that set out ‘specific facts showing that there is a genuine issue for trial.’” Id.
(quoting Celotex, 477 U.S. at 324). A “genuine” issue of material fact exists “when there
is sufficient evidence favoring the party opposing the motion for a jury to return a verdict
for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986).
The evidence must be viewed in the light most favorable to the nonmoving party,
giving the nonmoving party the benefit of all reasonable inferences. Kenney v. Swift
Transp., Inc., 347 F.3d 1041, 1044 (8th Cir. 2003). “In ruling on a motion for summary
judgment, a court must not weigh evidence or make credibility determinations.”
“Where the unresolved issues are primarily legal rather than factual, summary judgment
is particularly appropriate.” Koehn v. Indian Hills Cmty. Coll., 371 F.3d 394, 396 (8th Cir.
2004). If “reasonable minds could differ as to the import of the evidence,” summary
judgment should not be granted. Anderson, 477 U.S. at 251.
B. Sex Discrimination
Heartflow moves for summary judgment on Sivertson’s claims of federal and state
sex discrimination. Sivertson claims Heartflow discriminated against him on the basis of
his being male when it terminated his position and when it did not hire him for a different
position to which he applied. Heartflow argues Sivertson’s position was terminated as a
result of a reduction in force, not based on his sex, and that it hired another male for the
position to which Sivertson later applied because that man was more qualified than
Sivertson. The Court finds Heartflow is entitled to summary judgment on Siverton’s sex
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According to Title VII, “it is unlawful for an employer—(1) to fail or refuse to hire or
to discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of
such individual's . . . sex.” 42 U.S.C. § 2000e-2(a)(1). To survive a motion for summary
judgment under Title VII, Sivertson must show that he: (1) is a member of a protected
class (here, sex); (2) was meeting his employer’s legitimate job expectations; (3) suffered
an adverse employment action; and (4) was treated differently than similarly situated
employees who were not members of his protected class. Rebouche v. Deere & Co., 786
F.3d 1083, 1087 (8th Cir. 2015) (quoting Jackman v. Fifth Judicial Dist. Dep't of Corr.
Servs., 728 F.3d 800, 804 (8th Cir. 2013)). Sivertson must show either direct evidence
of a Title VII violation or create an inference of discrimination under the burden-shifting
framework set forth by the United States Supreme Court in McDonnell Douglas Corp v.
Green, 411 U.S. 792 (1973). See Fiero v CSG Sys. Inc., 759 F.3d 874, 878 (8th Cir.
2014). Under the McDonnell Douglas framework, the fourth prong can be met by showing
other circumstances that give rise to an inference of discrimination. Allen v. Interior
Constr. Servs., Ltd., 214 F.3d 978, 980 (8th Cir. 2000). The NFEPA prohibiting sex
discrimination under Nebraska state law is patterned after Title VII, and courts employ the
same analysis in addressing both claims. See Al-Zubaidy v. TEK Indus., Inc., 406 F.3d
1030, 1039 (8th Cir. 2005).
Heartflow does not dispute that Sivertson meets the first three prongs of a sexdiscrimination claim: he was a member of a protected class based on his sex (male), he
was meeting Heartflow’s legitimate job expectations, and he suffered an adverse
employment action. As to the fourth prong, however, the undisputed evidence does not
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show that he was treated differently from similarly situated female employees or that there
were other circumstances giving rise to an inference of discrimination on the basis of sex.
First, Sivertson points to his termination as evidence of sex discrimination. He
argues that Heartflow retained female employees who were similarly situated to him,
namely Michelle Cabrera, Colleen Kestner, and Rajah Brazda. However, as to Cabrera,
the evidence shows she was not similarly situated to Sivertson prior to his termination;
Sivertson was a BDM while Cabrera was a senior BDM. Filing No. 43-1 at 90. As
Sivertson’s immediate supervisor explained, a senior BDM had different responsibilities
from a BDM and received a different base salary. Filing No. 43-2 at 12. Kestner and
Brazda were BDMs who were retained when Sivertson was fired, but there is still a dearth
of evidence by which the Court can conclude they were similarly situated to Sivertson.
Importantly, Sivertson adduces no evidence of their salaries or bonuses, job
responsibilities, or other information to demonstrate how they were situated in comparison
to Sivertson himself. Importantly, the evidence does show that Sivertson, Kestner, and
Brazda worked in geographically disparate regions of the company, and that their
respective locations had an impact on the available markets and customer responsibilities
for each BDM. Filing No. 43-3.
Second, Sivertson claims Heartflow discriminated against him when it failed to hire
him for the open SAM position to which he applied following his termination. However,
the undisputed evidence shows that Heartflow hired a male individual, Anthony
Campanile, for that position. Therefore, Sivertson’s cannot show that a similarly situated
non-class member (aka non-male) was treated differently than he was, and his claim must
fail in this regard.
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Sivertson focuses heavily on the November 13, 2018, meeting in which he was
mistreated by Mike Buck as purported evidence of sex discrimination. Construing the
evidence in Sivertson’s favor as the Court must do, it is apparent that Buck’s treatment of
Sivertson at that meeting was overly harsh and unprofessional. However, workplace
criticism is not an adverse employment action. See LaCroix v. Sears, Roebuck, & Co.,
240 F.3d 688, 693 (8th Cir. 2001) (negative performance review did not constitute
adverse employment action). Thus, even taking as true Sivertson’s assertion that Buck
was less critical towards female employees at the meeting, this isolated incident does not
demonstrate Sivertson’s contention that his termination or the failure to rehire him (the
adverse employment actions he suffered) were the result of sex discrimination.
Given the lack of similarly situated employees in the record, the Court cannot
conclude Sivertson has made out a prima facie case of sex-based discrimination under
Title VII or the NFEPA. Heartflow is entitled to summary judgment on Sivertson’s sex
C. Age Discrimination
Heartflow also moves for summary judgment on Sivertson’s claims of federal and
state age discrimination. Sivertson claims Heartflow discriminated against him on the
basis of his age when it terminated his position. Heartflow argues Sivertson’s position
was terminated as a result of a reduction in force, not based on his age. The Court finds
Heartflow is entitled to summary judgment on Siverton’s age discrimination claims.
The ADEA protects individuals over forty and prohibits an employer from “fail[ing]
or refus[ing] to hire or . . . discharg[ing] any individual or otherwise discriminat[ing] against
any individual with respect to his compensation, terms, conditions, or privileges of
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employment, because of such individual’s age.”
29 U.S.C. § 623(a).
McDonnell Douglas framework, a plaintiff may establish a prima facie case of age
discrimination with a showing that (1) he is over forty; (2) he was qualified for the position;
(3) he suffered an adverse employment action; and (4) similarly-situated employees
outside the class were treated more favorably. Anderson v. Durham D & M, L.L.C., 606
F.3d 513, 523 (8th Cir.2010). Because the Nebraska ADEA is patterned after the federal
ADEA, courts look to federal law in analyzing Nebraska ADEA claims. See Blake v. MJ
Optical, Inc., 870 F.3d 820, 827 (8th Cir. 2017).
The parties do not dispute that Sivertson was over forty, was qualified for his job,
and suffered an adverse employment action when his position was terminated. However,
the undisputed evidence shows Sivertson cannot meet the fourth prong to demonstrate
Sivertson vaguely claims that he was fired while the company
retained “younger” females, but there is no evidence in the record of Kestner’s, Cabrera’s,
or any other employee’s age. Sivertson’s speculation that the employees retained may
have been younger than he and/or younger than forty is, without more, insufficient to
create a dispute of material fact. Heartflow is entitled to summary judgment on Sivertson’s
claims of age discrimination.
D. Motion to Strike
In opposition to Heartflow’s motion for summary judgment, Sivertson submitted,
inter alia, an affidavit from Scott Burger, the former manager under whom Sivertson
worked in the Midwest region. Filing No. 51-2 at 1–3. In the affidavit, Burger claims that
the elimination of Sivertson’s position was a poor strategic decision and that Buck
promoted Kestner and Cabrera over Sivertson based on favoritism rather than their
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qualifications. Filing No. 51-2 at 2–3. Throughout the affidavit, Burger makes statements
such as “[m]y understanding was” and “I became aware” without elaboration on where
such knowledge came from. Filing No. 51-2 at 2–3. Heartflow moves to strike various
portions of Burger’s affidavit because it claims they are not based on Burger’s personal
knowledge, are conclusory, and are without factual support. Filing No. 55.
“An affidavit or declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P.
56(c)(4). A declaration which does not satisfy these requirements may be stricken or
disregarded. Jain v. CVS Pharmacy, Inc., 779 F.3d 753, 758 (8th Cir. 2015) (citing
McSpadden v. Mullins, 456 F.2d 428, 430 (8th Cir. 1972)).
Heartflow argues the Court should strike certain portions of Burger’s affidavit
because they lack foundation and are not made on personal knowledge. However, even
taking into account the contested portions of the affidavit, the outcome would remain the
same; none of the information in Burger’s affidavit indicates Cabrera and Kestner were
similarly situated to Sivertson (in fact, it confirms Cabrera was a senior BDM rather than
a regular BDM, Filing No. 51-2 at 1) nor does it have anything to say about their ages.
Importantly, while Burger states his belief that Buck “show[ed] favoritism toward younger
female employees,” Filing No. 51-2 at 2, such beliefs—whether made on personal
knowledge or not—merely echo the same opinion already contained in Sivertson’s
deposition and do not create any disputes of material fact which would preclude the
Court’s grant of summary judgment for the reasons set forth above. Therefore, the motion
to strike is denied as moot.
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For the foregoing reasons, Heartflow is entitled to summary judgment on
Sivertson’s claims of federal and state sex and age discrimination.
IT IS ORDERED:
1. Defendant’s Motion to Strike, Filing No. 55, is denied;
2. Defendant’s Motion for Summary Judgment, Filing No. 41, is granted in full; and
3. The Court will enter a separate judgment.
Dated this 17th day of January, 2023.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge
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