Dearden v. Glaxosmithkline LLC et al
OPINION re: 30 MOTION for Summary Judgment , filed by GlaxoSmithKline Consumer Healthcare Holdings (US) LLC, Glaxosmithkline LLC. Based upon the facts and conclusions set forth below, the Defendants' motion for summary judgmen t is granted, and the Amended Complaint is dismissed. As Plaintiff has neither established that she possessed a disability protected by the NYSHRL nor that the circumstances under which she was terminated give rise to an inference of disability disc rimination, Defendants' motion for summary judgment as to the Amended Complaint's Count II and III is granted. For the foregoing reasons, Defendants' motion for summary judgment is granted, and as further set forth herein. (Signed by Judge Robert W. Sweet on 9/14/2017) (ras)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-againstGLAXOSMITHKLINE LLC., d/b/a/ GSK,
HEALTHCARE HOLDINGS (US) LLC.,
A P P E A R A N C E S:
Attorneys for Plaintiff
FRANK & ASSOCIATES, P.C.
500 Bi-County Blvd., Suite 465
Farmingdale, NY 11735
Patricia L. Boland, Esq.
Attorne y s for Defendants
MORGAN, LEWIS & BOCKIUS LLP
101 Park Avenue
New York, NY 10178
Blair J. Robinson, Esq.
Jason J. Ranjo, Esq.
15 Civ. 7628
Defendants GlaxoSmithKline, LLC, doing business as GSK
("GSK") and GlaxoSmithKline Consumer Healthcare Holdings
LLC (together with GSK, the "Defendants") have moved pursuant to
Federal Rule of Civil Procedure 56 to dismiss the complaint of
Plaintiff April Dearden ("Dearden" or the "Plaintiff") for her
retaliation and discrimination claims under the Family and
Medical Leave Act ("FMLA") and New York Human Rights Law
(the "Amended Complaint," Dkt. No. 2 6) . Based upon
the facts and conclusions set forth below, the Defendants'
motion for summary judgment is granted, and the Amended
Complaint is dismissed.
Plaintiff filed her Complaint on September 28, 2015, and,
pursuant to a stipulation between the parties, filed an Amended
Complaint on September 24 , 2016.
(See Dkt. Nos. 1, 24 , 26 .)
Plaintiff's Amended Complaint, Plaintiff allege d retaliation for
taking FMLA in vio lations of the statute (Count I),
discriminatory termination based on a known or perceived
disability in vio lation of the NYSHRL (Counts II and III), and
retaliation in violation of the NYSHRL (Count IV) . 1 (See Amended
Complaint!! 54-70.) Discovery has been completed.
On April 14, 2017, Defendants moved for s ummary judgment.
(Dkt. No. 30.) The instant motion was heard and marked fully
submitted on June 21, 2017.
The facts have been set forth in Defendants' Statement of
Undisputed Material Facts,
(Dkt. No. 32), and Plaintiff's Rule
56.1 Counter-Statement in Opposition,
(Dkt. No. 37). The facts
are not in dispute except as noted below.
GSK is a global pharmaceutical, vaccine, and consumer
(Declaration of Sylvetta Harris dated April
("Harris Deel.") ! 2, Dkt. No. 34; Pl. Dep. 19:9-18. 2 )
Plaintiff has not disputed Defendants' opposition to her
NYSHRL retaliation claim and, in motion papers for the instant
motion, has stated that that claim is withdrawn. (Pl.'s Mem. in
Opp. at 1 n.1, Dkt. No. 36); see Quintero v. Rite Aid of N.Y.,
Inc., No. 09 Ci v . 6084 (JLC), 2011 WL 5529818, at *19 (S.D.N.Y.
Nov. 10, 2011) (collecting cases). Accordingly, Defendants'
motion for summary judgment as to the Amended Complaint's Count
IV is granted.
Citations to "Pl. Dep." refer to the deposition of April
Dearden dated November 7, 2016, deposition pages for which were
Plaintiff began working for GSK as a pharmaceutical sales
representative in 2002 .
(Pl. Dep. 13:2-3, 16-3-10.)
Plaintiff's employment with GSK was governed by GSK's Code
of Conduct policy, which addressed conflicts of interest and
stated, in relevant part:
We must all be free from actual or potential conflicts
of interest. A conflict of interest occurs whenever
the prospect of direct or indirect personal gain may
influence or appear to influence our judgment or
actions while conducting GSK business.
* * *
It is important to avoid not only an actual conflict
of interest, but also the appearance of a conflict in
the performance of you job. You must promptly disclose
to a manager, supervisor or a Compliance Office, any
situation that may involve a potential or actua l
conflict of interest and ask for appropriate guidance
before taking any action (in accordance with local
(Harris Deel., Ex. A, at 9.) GSK's Code of Conduct Policy also
noted that any failure to comply with its provisions will
subject an employee "to disciplinary action up to and including
termination from employment." (Id. at 5.)
submitted with the Declaration of Jason J. Ranjo dated April 14,
2017 ("Ranjo Deel."), Ex. A, Dkt No. 33, and the Affirmation of
Patricia L. Boland dated April 28, 2017 ("Boland Aff.), Ex. A,
Dkt. No. 38, and incorporates the exhibits referenced therein.
In July 20 13, as part of a corporate restructuring,
Plaintiff began reporting to District Sales Manager Lauren
(Pl. Dep. 18: 14-23; Ranjo Deel., Ex . B
("Phillips Dep."), at 14:4-7.) While reporting to Phillips,
Plaintiff worked in GSK's pulmonary and primary care
pharmaceuticals line of business.
(Pl. Dep. 20 : 20 - 22: 3.)
Plaintiff's job responsibilities included calling healthcare
providers within her geographic territory, planning and
recording sales calls, reporting expenses, and studying for
tests necessary to promote the products to which she was
(Pl. Dep. 29 :1 2 -3 2 :9.)
Plaintiff was assigned the Middletown territory, which
covered areas of Orange County, New York, and included the towns
of Middletown, Goshen, Fishkill, Yorktown, Warwick, and Port
(Pl. Dep. 22 : 4-25; Phillips Dep. 50: 10-12.) Plaintiff
shared responsibility for the Middletown territory with her
sales partner, Ife-Marie Lafontant ("Lafontant").
Prior to 2009, Plaintiff obtained a certification to work
as a Corporate Wellness coach and, by 2010, had started her own
health and wellness business, New Normal Lifestyles
(Pl. Dep. 35:2-36:18, 38:2-16.) Between 2010 and 2014, Plaintiff
worked with clients on nutrition and other issues related to
personal health and wellness independent of her sales work with
(Pl. Dep. 36:24-38:12.) Sometime in either 2011 or 2012,
Plaintiff received a certification in nutrition.
Through her NNL business, Plaintiff also provided
educational services related to health and wellness to colleges,
including Bard College and Empire State College.
(Pl. Dep. 37:7-
9, 38:17-22, 58:3-6, 75:4-13.) For example, from July to
December 20 13, Plaintiff taught a weekly health and nutrition
Wellness Course at Bard College that started at noon on
Wednesdays and lasted one hour.
(Pl. Dep. 61:13-64:12,
72:6-25.) Bard College was located outside of Plaintiff's GSK
territory, and such classes caused Plaintiff to be outside her
assigned GSK territory and performing her assigned GSK work for
between one to two hours each session, according to Plaintiff,
(Pl. Dep. 66:6-8), or greater than two hours, according to
(Pl. Dep. 63:4-65:16, 66:2-13). The parties do not
dispute that during Plaintiff's eighteen weeks of teaching at
Bard College, Plaintiff sent and received emails related to her
NNL business and may have prepared for teaching the Bard College
classes during her GSK working hours.
(Pl. Dep. 74:7-23, 84:5-
85:87:24.) After completing two nine-week sessions, Plaintiff
chose to stop teaching the Wellness Course.
(Pl. Dep. 75:13-
Plaintiff also lectured on nutrition at Empire State
College on at least one occasion in April 2014.
(Pl. Dep. 58:3-
59:5-18.) The parties dispute the degree to which Plaintiff
prepared for her lecture during work hours prior to the class,
and Plaintiff does not recall when she prepared.
Plaintiff operated a blog to promote her NNL business, on
which she provided advice on health issues, including eating
properly, stress management, and general wellness tips.
Dep. at 40:18-43:6, 45:16-21, 48:23-49:8.) Between 2010 and
2014, Plaintiff updated the NNL blog several times a month,
although the parties contest precisely how often Plaintiff
generated new content and how much time, if any, was spent
updating the blog during Plaintiff's regular GSK working hours.
(Pl. Dep. 42:10-43:25.) Plaintiff also discussed NNL with GSK
customers during her sales calls.
(Pl. Dep. 55:14-57:10.)
On January 16, 2014, Plaintiff published a book related to
her NNL business entitled "8 Weeks to Your New Normal
Lifestyle." (Pl. Dep. 46:16-18, 49:9-50:12.) Plaintiff's book
provided readers with a journal for logging their weekly food
habits and "new healthy habit[s]" they could incorporate into
their meal plans.
(Pl. Dep. 50:13-25.) Plaintiff wrote the book
herself over the course of about one year, starting in early
(Pl. Dep. 51:13-20.) Plaintiff promoted her book on social
media, including Facebook, while waiting to see physicians
during her assigned GSK sales calls.
(Pl. Dep. 53:7-17.)
In March 2 014, Plaintiff began working as an independent
contractor for AdvoCare International, L.P.
nutrition and supplement company that promoted individual health
(Pl. Dep. 171:2-173:10, 174:22-175:12.) Plaintiff
was an independent distributer of AdvoCare products in four
general areas: weight management, performance, energy, and
(Pl. Dep. 174:14-23; 179:14-182:11.) Plaintiff
sold AdvoCare products from March 2014 throughout the remainder
of her employment with GSK.
physicians about AdvoCare.
Plaintiff never spoke to GSK
(Pl. Dep. 186:22-25.)
Plaintiff had her own webpage as part of AdvoCare's
website, on which she wrote, in relevant part:
For 12 years I worked for a large pharmaceutical
company. Over the years the job became more demanding,
my compensation went down and every quart e r there were
threats of layoffs. Until the day finally came and I
was let go. Thanks to AdvoCare that day was one of the
best things that ever happened to me. I had begun
building my Plan B four months before I was let go.
I've been building my AdvoCare business every day
(Pl. Dep., Ex. 10.) Plaintiff has stated that s h e had been
working towards becoming an AdvoCare "Advisor" for several
months prior to her GSK termination.
(Pl. Dep. 178:2-179:18.)
Plaintiff discussed "everything [she] was doing" with NNL
and AdvoCare with LaFontant.
(Pl. Dep. 44:9-45: 4 , 46:4-11, 47: 2 -
9.) Plaintiff also discussed NNL with Ken Rooney, another GSK
(Pl. Dep. 47:13-48:22, 18 2 :16-184:25.)
Plaintiff never disclosed her NNL business or AdvoCare position
to Phillips or any other member of GSK management before taking
(Pl. Dep. 47:13-48:22, 175:25-176:7.)
On April 30, 2014, Plaintiff visited her primary care
physician, Dr. Anita V. Pavels ("Pavels") after experiencing
what she described as "stress related heart palp[itations],
dizziness, sleep problems" and shortness of breath.
Deel., Ex. C; see Pl. Dep. 128:22-129:17.) Pavels referred
Plaintiff to a cardiovascular specialist to undergo testing of
her heart, which ultimately revealed no heart-related issues and
concluded a diagnosis of stress and anxiety.
(See Ranjo Deel.,
Ex. D; Pl. Dep. 1 2 9:3-23, 132:13-20.)
On or around May 1 2 , 2014, Plaintiff arrived approximately
forty-fi v e minutes late to a physician call whe r e she was
supposed to meet Phillips.
(Pl. Dep. 137:12-138 : 13; Phillips
Dep. 32:20-33:11.) According to Defendants, Plaintiff began
crying and explained to Phillips that she was experiencing
stress related to her job; Phillips advised Plaintiff that if
Plaintiff was unable to conduct the sales call, she should go
home for the day and consider seeking help from a doctor or
GSK's Employee Health Management.
(Pl. Dep. 138:15-139:22;
Phillips Dep. 31:23-32:11.) Plaintiff contends that, upon
arriving to the call, Phillips yelled at Plaintiff for being
late, which caused Plaintiff to cry.
(Pl. Dep. 138: 15.)
Phillips stated she did not understand why Plaintiff was
behaving that way, to which Plaintiff explained her stress
levels were very high; Phillips responded: "I don't understand.
High performing reps find workarounds. I can't g e t why you can't
do this," to which Plaintiff said she needed Phillips to
"understand and to help [her]." (Pl. Dep. 136: 3 -2, 138:15139:22.)
On or around May 14, 2014, Plaintiff cont a cted GSK's Human
Resources Department and requested medical leave because "she
to take some time for herself" due to work-related
(Pl. Dep. 140:10-20.) Plaintiff also submitted a Short-
Term Disability Benefit Statement from Pavels, on which Pavels
wrote that Plaintiff's "current physical limitations and
impairments" wer e that Plaintiff was "unable to perform [her]
job duties." (Harris Deel., Ex. B.) GSK granted Plaintiff leave
under the FMLA on June 2, 2014, effective May 1 9 , 2014.
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