Majer v. Lexion Medical, LLC
Filing
85
Memorandum Opinion and Order adopting, in part, and modifying, in part, the Magistrate Judge's Report and Recommendation. Lexion's 43 Motion for Summary Judgment is denied and Majer's 64 Motion to Strike Improper Evidentiary Material is dismissed as moot. This matter has been set for trial on 11/7/2011 at 9:00 a.m. and final pretrial on 10/19/2011 at 10:30 a.m. Judge Benita Y. Pearson on 6/1/2011. (S,L)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
TONI MAJER,
Plaintiff,
v.
LEXION MEDICAL, LLC,
Defendant.
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CASE NO. 1:09CV00836
JUDGE BENITA Y. PEARSON
ORDER ADOPTING IN PART,
MODIFYING IN PART THE
MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION AND
DENYING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT AND
DISMISSING PLAINTIFF’S MOTION
TO STRIKE.
[Resolving ECF Nos. 43, 64, and 70]
I. Introduction
Before the Court is the Report and Recommendation (ECF No. 69) filed by Magistrate
Judge Nancy A. Vecchiarelli recommending that the Court deny the Motion for Summary
Judgment (ECF No. 43) filed by Defendant Lexion Medical, LLC (“Lexion”) and dismiss as
moot the Motion to Strike Improper Evidentiary Material (ECF No. 64) filed by Plaintiff, Toni
Majer (“Majer”). Lexion has filed objections to the Report and Recommendation (ECF No. 70),
to which Majer has responded (ECF No. 76). For the reasons set forth below, the Magistrate
Judge’s Report and Recommendation is adopted, in part, and modified, in part. Lexion’s motion
for summary judgment is denied. Majer’s motion to strike is dismissed as moot.
(1:09cv00836)
II. Standard of Review
The standard of review for evaluating a Report and Recommendation is set forth in 28
U.S.C. § 636. The Court “shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” Id. § 636(b)(1)(C).
The Court “may accept, reject or modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” Id.
III. Background
The Report and Recommendation accurately details the facts and procedural history of
the case. Those facts and history, to which neither party has objected, are restated herein.
Lexion produces medical devices for sale to physicians and medical
institutions. Lexion’s sales representatives sell these devices. Majer applied for a
sales representative position with Lexion in May 2006. Three regional sales
managers (“RSMs”) interviewed her for the job: Mark Jarboe (“Jarboe”), Lori
Larson (“Larson”), and Karen Hawthorne1 (“Hawthorne”). During these
interviews, Larson and Hawthorne allege that they told Majer that the success of
sales representatives was measured by the new accounts they obtained. On May
10, 2006, Lexion sent Majer a letter offering her a job as a sales representative and
outlining certain terms of her employment. Deposition of Majer, Exh. 55, Doc. 7.
These terms included her base salary, commission structure, growth requirements,
bonus schedule, territory history, and territory projections. The letter also
indicated that Lexion expected Majer to produce $100,000.00 in growth and that
this goal must be met before she would earn commissions.
Majer accepted Lexion’s job offer. Lexion gave Majer 1½ days of
training, during which she was told that the average learning time for persons
without previous medical sales experience was three to four months. Majer was
primarily responsible for selling Lexion’s Insuflow device. Her job included
exploring sales leads, cold calling potential buyers in her territory, visiting current
users of the Insuflow, finding out why past users were no longer using the device,
and, particularly, working in the operating room with physicians to demonstrate
how the device was used. Majer worked with Hawthorne or Jarboe on five
1
Hawthorne is Majer’s direct Supervisor. ECF No. 72.
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occasions to help her learn how to market and demonstrate the Insuflow. She also
worked with or shadowed other successful sales representatives to learn how they
worked to sell the device. In addition, Majer received tips and leads from the
RSMs regarding how to support current customers, how to find and research new
customers, and where likely sales could be found.
Majer had regular feedback regarding her sales status and performance.
All sales representatives, including Majer, received bi-monthly sales reports that
summarized the status of ongoing accounts, new sales, and progress toward sales
goals. Once a month, sales representatives also received commission statements.
These statements summarized the representative’s sales each month in dollar
amounts, whether the representative was meeting sales goals, and whether the
representative had any bonus accounts. Majer secured her first new account in
August, 2006. She did not meet her goals for new sales in any month in which
Lexion employed her.
Majer contends that she received consistently positive communications
from Hawthorne during 2006. Majer cites these communication as examples of
positive communications:
•
June 7, 2006, e-mail message, “love, love, love”: “WOW… This
visit to Cleveland has completely reinforced why we chose you as
THE candidate.”15
•
August 7, 2006 “Your success”: “You are doing a great job
networking and putting things together in your territory. . . . Keep
up the great attitude and determination. Your first new account is
just around the corner!”
•
August 21, 2006 “Follow Up 8-21-06": “It looks like things are
beginning to take shape for you… again, congratulations on
securing your first new account! It is very apparent that you have
been hitting the pavement and have been making many connections
within the community . . . . The connections you have made thus
far are working for you. Keep up the great work!”
•
October 3, 2006, “October is your month!”: “I can feel it.”
•
October 6, 2006, “thanks”: “for keeping your expenses in check.
Love it!”
Opposition Brief at 2-3 (footnotes omitted).
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On January 5, 2007, Majer received the following e-mail from Hawthorne
accompanied by an attachment describing Majer’s 2007 Compensation Plan:
Toni--Congratulations on a successful 2006! We are looking forward to
accelerating the pace for 2007 and we are confident that this will be your
break out year! Remember, because of your start date in 2006, you are
eligible for Rookie of the Year 2007. We have attached your 2007 Comp
Plan with this email. Please let us know if you have any questions. Good
luck in 2007!
P.S. We have determined your compensation for 2006 as $35,077 (regular
pay, holiday pay and PTO from hire date- Dec.30th) plus $5,194.80 in
commission to equal $40,272. This does not include your new account
bonuses of $1,500.00 which would bring a grand total of $41,772. During
a full calendar year this equates to $66,695.)
2007 Benefits enclosed also.
Deposition of Majer, Pt. I, Exh. 50 (punctuation in original). The attached
commission plan indicated that Majer had achieved $20,627 of new growth in
2006, about 20% of the goal that had been set for her. It also projected new
account growth for 2007 as $150,000.00. Such growth, when combined with
existing accounts, would have resulted in $380,633.00 of total sales for 2007, or
about $27,655.00 per month, with old accounts representing almost $17,000 of
that number.
According to Lexion, two questions from Majer in January 2007 indicated
to Hawthorne that Majer was having difficulty understanding basic concepts and
procedures related to the Insuflow. Hawthorne and the other RSMs began
discussing concerns regarding Majer’s performance.
Majer’s sales figures for January and February 2007 were $19,995.00 and
$18,159.00, respectively. Deposition of Majer, Exh. 103. A handwritten note
from the end of February 2007 indicates that Majer understood that she needed
total sales of $27,535.00 per month during 2007 to meet her sales goals.2
Deposition of Majer, Exh. 104, p. 3.
2
As noted earlier, the attachment to Majer’s January 5, 2007 e-mail gave the monthly
goal as $27,655.00. The relatively minor discrepancy between that figure and the figure that
Majer jotted down at the end of February is not explained in the record.
4
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Majer continued to receive training from Hawthorne. In March,
Hawthorne told Majer that she needed to spend less time in the office and more
time in the operating room and that she needed to take a more focused approach to
her leads. Majer failed to follow up on an in-service call she made with
Hawthorne, despite Hawthorne’s directive to do so.
On April 27, 2007, Jarboe sent an e-mail to all territory sales
representatives naming the top two sales representatives on the basis of sales for
the first quarter of 2007. Deposition of Majer, Exh. 63. The e-mail also gave
each representative a ranking out of 21.3 Majer’s ranking was 18th. Lexion
alleges that only new sales representatives ranked lower than Majer.
On May 2, 2007, Hawthorne e-mailed all her sales representatives, asking
them to provide examples of what they say when trying to promote Insuflow,
without sounding “clinical.” On May 11, 2007, having received Majer’s response
to the e-mail, Hawthorne e-mailed the following to Majer:
Toni- This is exactly right. However, . . . we want to work on “casual
lingo.” This response sounds very scripted . . . right from the textbooks.
Can you re-read the comments that are going around and see the difference
between those and this?
The casual lingo we are referring to seems to be better received by the
nurses and drs because they can truly relate to it. And those who are using
it in the field are having more success.
Try to work on your casual lingo and begin incorporating it into your sales
calls instead of the mechanical answers which can come across as
monotone and uninteresting.
Your audience will be more engaged, entertained, and more passionate
about the Insuflow benefits which will lead to more sales.
Let me know if you have questions regarding where we are going with this
. . . thanks.
Deposition of Majer, Exh 68.
On May 17, 2007, Hawthorne and Majer discussed two studies related to
3
A handwritten note on the copy of the e-mail in the record indicates that the proper
number is 22. The author of the note is unknown.
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recovery time and reduction of bowel obstruction. Four days later, Majer emailed Hawthorne asking for the same information that the two had reviewed on
the 17th. After an additional e-mail from Majer indicating that she was unclear
about the studies, Hawthorne e-mailed in relevant part: “Toni, You should know
the Ott one by heart…. And know the key points….! After you get home and have
internet access, re-read the Ott4 study from 1999…” Deposition of Hawthorne, Pt.
II, Doc. No. 58, Exh. OOO. Lexion contends that these exchanges show that
Majer apparently did not understand studies she had first been given a year earlier.
Deposition of Hawthorne, Pt. II at 192-94.
From May 22, 2007 through May 24, 2007, Majer attended field training
with Mike Kirkpatrick (“Kirkpatrick”), a Michigan sales representative. Upon
completion of the training, Majer told Hawthorne that she was doing everything
that Kirkpatrick had done and that she had not learned anything new. Kirkpatrick,
however, reported to Hawthorne and Jarboe that Majer was not confident when
talking about the Insuflow to an audience. Kirkpatrick said that she was flustered
when talking to surgeons, was hesitant, had many questions, and apparently did
not grasp the selling points of the Insuflow. Kirkpatrick had been hired one
month after Majer.
During the training with Kirkpatrick, Hawthorne and Majer exchanged emails. In one of the e-mails, Majer expressed confusion about the term “4 arms of
11,” meaning four groups of patients. Lexion alleges that because of this,
Hawthorne became concerned that Majer did not know what the term meant, as is
was one that was frequently used and to which Majer had been introduced a year
earlier.
Hawthorne, Jarboe, and Larson allege the following. On May 24,5 2007,
the RSMs conferred regarding Majer. They discussed ending Majer’s
employment, something that they had discussed previously. Among other things,
they reviewed the following information regarding Majer’s sales performance
compared to her sales goals:
4
Douglas E. Ott was Lexion’s medical director.
5
The date may have been May 23, 2007. Testimony about the exact date is
contradictory.
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Month
Goal
Sales Performance
July 2006
$25,833.33
$12,798.00
August 2006
$25,833.33
$23,400.00
September 2006
$25,833.33
$15,069.00
October 2006
$25,833.33
$16,914.00
November 2006
$25,833.33
$18,828.00
December 2006
$25,833.33
$23,514.00
January 2007
$27,552.75
$19,995.00
February 2007
$27,552.75
$18,159.00
March 2007
$27,552.75
$21,153.00
April 2007
$27,552.75
$17,793.00
May 2007
$27,552.75
$25,056.00
Deposition of Majer, Exh. 103 at 1, 8.6 They also noted that Majer had lost some
previously-established business, had difficulty with basic concepts related to the
Insuflow, and was not spending enough time in the operating room. Consequently,
they decided to terminate Majer. They also decided to continue her through the
second quarter, with an effective termination date of July 10, 2007. After this
discussion, the RSMs allegedly telephoned Shelly Amann, their supervisor, and,
later, Dr. Ott, Lexion’s medical director regarding their decision to terminate
Majer.
Majer did not attend a conference call scheduled for May 30, 2007. On
June 15, 2007, Hawthorne and Majer participated in a conference call during
which Hawthorne told Majer that she had not improved her sales performance.
On June 18, 2007, Majer telephoned Hawthorne and told her that she had sprained
her ankle over the weekend and that she was pregnant. Hawthorne alleges that
6
Plaintiff erroneously objects to the use of the chart as “evidence.” The chart is not
evidence. The citations accompanying the chart in Lexion’s brief, including the citations to
Deposition of Majer, Exh 1, are evidence for the veracity of the numbers in the chart. Whether
those numbers are expressed in Lexion’s brief as paragraphed text or as a chart is an irrelevancy.
7
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she congratulated Majer on her pregnancy; Majer alleges that Hawthorne did not
congratulate her. Instead, according to Majer, Hawthorne noted that another sales
representative had also said that she was pregnant and asked, “What are we going
to do about that?”
On June 26, 2007, Hawthorne completed Majer’s separation notice.
Majer’s sales numbers for June 2007 were $14,448.00, an amount more than
$13,000.00 below her sales goal. Majer had not used an Insuflow sample during
the month of June. Majer’s sales for the first half of 2007 were $116,604.00,
reflecting a decrease from her sales in the last half of 2006, $129,882.00.
Hawthorne and Majer met on July 10, 2007 in Westlake, Ohio.
Hawthorne told Majer that her employment was not working and that she was
being terminated. Hawthorne collected the property Lexion had given Majer,
including a laptop computer and a car, and arranged for a car to bring Majer
home.
According to Hawthorne, when she returned to the office, she found a
number of personal items that had been left in the case containing the laptop.
These included note pads, pens, paper clips, rubber bands, and two packets of
pills. Hawthorne testified that the pills had Majer’s name and address on them
and that four or five pills on one of the packages had been punched out. She told
Katie Pavleck (“Pavleck”) to send them to Majer. Pavleck sent them to Majer by
Federal Express with an enclosed note, “Karen wanted me to send you these.
Thanks, Katie.” Hawthorne also testified that Majer had told her earlier that she
had been using birth control pills until she decided to become pregnant. Majer
later produced birth control pills she alleged she had received in the mail from
Lexion, but those pills were identified as belonging to Jian Tang (“Tang”), and the
prescription had been filled at a pharmacy in Avon Lake, Ohio. Tang flew out of
Cleveland on July 10, 2007 on the same flight that Hawthorne had taken to leave
Cleveland. The pills had been placed in an outer pocket of her backpack which,
like Hawthorne’s computer case, had been “gate checked” before boarding the
flight. Tang testified that both of her packages of pills had been full. Hawthorne
denied that the pills produced later by Majer were the pills she had asked Pavleck
to send to Majer.
On July 18, 2007, Majer’s attorney sent Lexion a letter advising it of
Majer’s claims and protesting what counsel believed to be harassment directed at
Majer by sending the birth control pills to her. Majer filed a charge of
discrimination with the Equal Employment Opportunity Commission (“EEOC”)
on December 10, 2007, alleging gender and pregnancy discrimination. Majer
received a right to sue letter from the EEOC on December 3, 2008.
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On February 26, 2009, Majer filed this action against Lexion in state court.
Lexion removed the case on April 13, 2009. Majer alleges impermissible gender
and pregnancy discrimination in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), and the Pregnancy Discrimination
Act (“PDA”), 42 U.S.C. § 2000e(k). Lexion now moves for summary judgment.
ECF No. 69 at 2-10.
IV. The Pregnancy Discrimination Act and McDonnell Douglas Standard
The Pregnancy Discrimination Act of Title VII prohibits sex-based discrimination on the
basis of pregnancy. 42 U.S.C.A. § 2000e(k). Specifically, when the Pregnancy Discrimination
Act was codified in 1978, Congress amended Title VII by clarifying that the terms “because of
sex” or “on the basis of sex” include, but are not limited to, “because of or on the basis of
pregnancy, childbirth, or related medical conditions.” Id. Women affected by pregnancy,
childbirth, or related medical conditions must be treated the same for all employment-related
purposes. Id. Furthermore, women affected by such conditions are required by Title VII to be
treated the same for all employment-related purposes as other persons who are not affected, but
who have a similar ability or inability to work. Id.
In the absence of direct evidence of discrimination, the Court is instructed to conduct the
familiar McDonnell Douglas burden-shifting framework to analyze Title VII-pregnancy
discrimination claims. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Asmo v.
Keane, Inc., 471 F.3d 588, 592 (6th Cir. 2006); Cline v. Catholic Diocese of Toledo, 206 F.3d
651, 658 (6th Cir. 2000). First, underneath the McDonnell Douglas framework, an employee
must put forth a prima facie case of pregnancy discrimination by demonstrating “that (1) she was
pregnant, (2) she was qualified for her job, (3) she was subjected to an adverse employment
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decision, and (4) there is a nexus between her pregnancy and the adverse employment decision.”
Cline, 206 F.3d at 658. If the employee is able to present such a case, then the burden shifts to
the employer to provide a legitimate, non-discriminatory reason for its adverse employment
decision. Id. If the employer proffers a legitimate, nondiscriminatory reason for the adverse
employment action, the burden shifts back to the employee, who, in order to defeat a motion for
summary judgment, must show that the employer's articulated reason was a pretext for
intentional discrimination. Id.; see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 142-43 (2000) (holding that prima facie case and sufficient evidence of pretext may permit
trier of fact to find unlawful discrimination, without additional, independent evidence of
discrimination, though such showing will not always be adequate to sustain jury's finding of
liability).
V. Analysis
Because there appears to be no dispute as to whether the first two inquiries of the
McDonnell Douglas framework were met–as evidenced by the Magistrate Judge’s findings–(a)
Majer established a prima facie case of discrimination (ECF No. 69 at 18); and (b) Lexion
articulated a legitimate and nondiscriminatory reason for terminating Majer (ECF No. 69 at
18)–the disposition of this case ultimately hinges upon resolving the final inquiry in the
framework–whether Majer presented sufficient evidence from which a jury could reasonably
conclude that Lexion’s non-discriminatory reason for terminating Majer was merely a pretext for
discrimination.
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Lexion argues to the contrary and has raised three objections to the Report and
Recommendation–all of which criticize the Magistrate Judge’s finding that Majer succeeded in
meeting her burden to establish pretext. ECF No. 70. First, Lexion asserts that the Magistrate
Judge incorrectly concluded that there was a genuine issue of material fact as to whether Majer
performed poorly. ECF No. 70 at 3-5. Second, Lexion refutes the Magistrate Judge’s holding
that there was sufficient evidence supporting Majer’s contention that she was treated differently
from similarly situated sales representatives. ECF No. 70 at 5-8. Lastly, Lexion alleges that
Majer’s supervisor’s failure to react positively when discovering Majer’s pregnancy was
insufficient evidence to establish pretext. ECF No. 70 at 8.
While not categorized as an objection, Lexion also criticizes the Magistrate Judge’s
failure to apply the “honest belief” rule, articulated in Smith v. Chrysler Corp., 155 F.3d 799,
806-08 (6th Cir. 1998), when determining that Majer had met her evidentiary burden in
demonstrating discriminatory animus. ECF No. 70 at 2-3. The rule is proffered as an additional
reason to rule in favor of Lexion’s Motion for Summary Judgment.
The Court will address each of Lexion’s objections below, as well as Lexion’s averment
that it is entitled to summary judgment in light of the “honest belief” rule.
A. Pretext
The Sixth Circuit Court of Appeals has held that a plaintiff can demonstrate pretext, i.e.,
rebut the legitimate and non-discriminatory reason articulated by her employer “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.
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Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000).
The first rebuttal test that a plaintiff can satisfy “is easily recognizable and consists of
evidence that the proffered bases for the plaintiff’s discharge never happened, i.e., that they are
factually false.” Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1084 (6th Cir. 1994)
(citing Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1123-24 (7th Cir. 1994)) (emphasis
and quotation marks omitted). The third rebuttal test “is also easily recognizable and, ordinarily,
consists of evidence that other employees . . . not in the protected class, were not fired even
though they engaged in substantially identical conduct to that which the employer contends
motivated its discharge of the plaintiff.” Manzer, 29 F.3d at 1084. The Sixth Circuit has
explained that the first and third tests are generally grouped together because they are both
“direct attacks on the credibility of the employer's proffered motivation for firing [the employee]
and, if shown, provide an evidentiary basis for what the Supreme Court has termed ‘a suspicion
of mendacity.’ ” Jones v. Potter, 488 F.3d 397, 406 (6th Cir. 2007) (quoting St. Mary’s Honor
Center v. Hicks, 113 S. Ct. 2742, 2749 (1993)).
The second rebuttal test, “by contrast, ‘is of an entirely different ilk’ because ‘the plaintiff
admits the factual basis underlying the employer’s proffered explanation and further admits that
such conduct could motivate dismissal.’” Jones, 488 F.3d at 406 (quoting Manzer, 29 F.3d at
1084) (emphasis in original). The plaintiff indirectly attacks the credibility of the proffered
legitimate non-discriminatory reason. Manzer, 29 F.3d at 1084. “In such cases . . . 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.” Id.
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A review of the Report and Recommendation reveals that the Magistrate Judge did not
cite the test articulated in Manzer when she determined that Majer met her burden establishing
pretext. Therefore, the Court modifies the Magistrate Judge’s analysis to comport with the
Manzer guidelines and, ultimately, adopts the Magistrate Judge’s conclusions, albeit for different
reasons.
Applying the principals espoused in Manzer to the instant case, the Court finds that Majer
introduced sufficient evidence from which a reasonable juror could find that Lexion’s proffered
explanation for terminating Majer was not credible under either the second or third rebuttal test.7
This revelation leads the Court to address Lexion’s first objection to the Report and
Recommendation, wherein Lexion argues that it is undisputed that Majer performed poorly as
evidenced by her failure to meet her sales goals. Lexion contends that “the documents proffered
by Majer clearly show she failed to meet her new sales performance goals.” ECF No. 70 at 3.
Lexion further states “that there was no dispute [to the ] fact that [Majer] did not once in any
month of employment ever meet [her] sales figures.” ECF No. 70 at 4.
As argued by Majer, “Lexion’s argument misses the point.” ECF No. 76 at 5. The
question for the Court to resolve, under either the second or third rebuttal test articulated in
Manzer, is not whether a reasonable juror could conclude that Majer failed to meet her new sales
goals. Rather, the Court’s inquiry hinges upon whether Majer’s failure to meet her new sales
7
Although Majer maintains that Lexion’s stated reason for terminating her is false (ECF
No. 60 at 34), she concedes that she failed to meet the sales goals established by Lexion. ECF
Nos. 76 at 5 and 60 at 19-21. Because there is at least some factual underpinning to Lexion’s
proffered explanation for terminating Majer, analyzing Majer’s evidence of pretext under the first
test is foreclosed. See Manzer, 29 F.3d at 1084.
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goals was either the impetus behind Lexion’s decision to terminate her employment or sufficient
to warrant terminating her employment. Under both the second and third rebuttal tests, Majer’s
perceived inadequacies to meet her sales quotas are irrelevant. Lexion’s objection is, therefore,
overruled.
In support of proving that Majer’s inability to meet her sales goals was neither the
impetus for her termination or sufficient to warrant such severe action, the record reveals that
there are genuine issues of material facts with respect to (1) the actual criteria used by Lexion to
evaluate its sales representatives, and (2) whether similarly situated employees, outside of the
protected class, were treated differently. Additionally Majer’s report of Lexion’s reaction to the
news of her pregnancy serves as additional evidence in proving pretext.
1. Criteria for Evaluating Employees
As a preliminary matter, the record reflects that Majer has cast doubt upon the actual
criteria used by Lexion to evaluate the performance of its sales representatives. According to
Lexion, the ability to grow sales, i.e. “new growth”, with respect to new sales accounts was the
primary measure of a sales representative’s performance. ECF Nos. 69 at 18-19; 70 at 3-4.
Majer, however, has maintained that Lexion’s true and utilized criterion in evaluating the
performance of its sale representatives is the achievement in combined sales, which includes not
only those sales related to “new growth” of new accounts, but also those sales garnered from
pre-existing accounts. ECF Nos. 69 at 20 and 76 at 4-5.
Majer’s position is persuasive. As the Magistrate Judge aptly pointed out, documentation
prepared by Lexion catalogs Majer’s sales performance by conflating “new growth” sales figures
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with those from pre-existing accounts. ECF No. 69 at 23-24. For example, in Lexion’s Motion
for Summary and its accompanying attachments, Lexion presented to the Court a chart
illustrating Majer’s alleged lackluster performance by conflating the two criteria. ECF Nos. 43 at
22;43-6 at 34-48; and 43-9 at 70. Additionally, in a document submitted to the EEOC in the
course of the agency’s investigation, Lexion also merged the criteria when determining Majer’s
rank within the sales department. ECF No. 57-13. While Lexion has stated that the document
given to the EEOC “provides a very imprecise view of the actual performance of all the sales
reps” (ECF No. 62 at 1), its explanation rings hollow given that Lexion has, on at least more than
one occasion, used Majer’s stated criteria when displaying the relative achievement of its staff.
The Magistrate Judge also found an inconsistency between Lexion’s averment of its
policy regarding granting commissions to its sales staff and its practice of doing so to be further
evidence that Lexion’s criteria for judging sales representatives’ performance encompassed not
only “new growth”, but pre-existing sales, as Majer reports. The Magistrate Judge stated:
The conflict between this document [prepared for the EEOC] and the various
Compensation Plans regarding what constitutes ‘sales goals’ at Lexion is made more
acute because Lexion avers that no sales representatives was to receive commissions
until he or she achieved the new growth achievement goal set for that year. Yet,
although Majer failed to achieve her new growth goal, she received commissions for
her work in 2006, as described in her 2007 Compensation Plan.
ECF No. 69 at 23.
Lexion criticizes the Magistrate Judge for attributing any significance to its compensation
plan or Majer’s receipt of commission on the basis that the Magistrate Judge’s assessment of its
compensation plan was grossly misguided. Lexicon refutes the Magistrate Judge’s finding that
receipt of commissions is only conditioned upon the achievement of “new growth” goals by
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explaining: “a sales rep receives [additional] commissions on all existing sales, whether the sales
rep made the sales or not. That is how they receive their base salary.” ECF No. 70 at 7.
To the extent that the Magistrate Judge incorrectly characterized Lexion’s compensation
plan, Lexion’s objections are sustained. It appears, however, that the Magistrate Judge placed
emphasis on this inconsistency to not only call into question Lexion’s credibility, but also to
illuminate the incongruous nature of Lexion’s position. If Lexion’s averment–that the criterion
of importance is only the measure of “new growth” and not performance related to combined
sales–is to be believed, it appears nonsensical that sales representatives, like Majer, would still be
rewarded and receive commissions for the less valued work associated with pre-existing
accounts. The Magistrate Judge’s finding has merit.
Viewing the facts in the light most favorable to Majer, the non-moving party, the Court
agrees that Lexion’s Compensation Plan can legitimately be construed to support Majer’s
position that a sales representative’s ability to maintain existing accounts was also taken into
consideration when evaluating performance.
With respect to proving pretext as discussed in Manzer, the uncertainty of Lexion’s actual
criteria in evaluating its sales representatives most certainly can be viewed as evidence indirectly
attacking the credibility of Lexion’s legitimate non-discriminatory reason under the second
rebuttal test. See Manzer, 29 F.3d 1084. Lexion’s inconsistent position and conflicting
documents undoubtedly shadows Lexion’s credibility. Debate on this issue becomes most
significant when determining, whether similarly situated employees outside of the protected class
were subjected to different treatment, in support of proving pretext under the third rebuttal test,
16
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as discussed below. Id.
2. Treatment of Similarly Situated Employees
The Magistrate Judge concluded that Majer had presented sufficient evidence to raise an
issue for the trier of fact to determine whether Majer had been treated differently than other
similarly situated sales representatives. The Magistrate Judge’s analysis focused primarily on
three individuals believed to be similarly situated–Wilson, Kirkpatrick and Spearman, who
shared the same supervisor as Majer, and whom Majer alleged had all performed worse than
Majer but did not suffer the same fate. ECF No. 69 at 20-25.
When analyzing the treatment of Spearman compared to that of Majer, the Magistrate
Judge acknowledged Lexion’s concession that Spearman performed worse than Majer but had
not been terminated. The Magistrate Judge did not, however, opine as to whether the dissimilar
treatment of Spearman bode well for Majer’s argument. ECF No. 69 at 24-25. With respect to
Wilson, the Magistrate Judge found that Wilson’s poor performance and his termination by
Lexion “more than six months” after Majer’s “offers marginal, if any, support for” Lexion’s
contention that Majer was fired for reasons unrelated to her pregnancy.8 ECF No. 69 at 24,
FN13.
In regard to Kirkpatrick, however, the Magistrate Judge found Lexion’s perceived silence
concerning Kirkpatrick’s performance and continued employment compared to the treatment
8
The Magistrate Judge mistakenly understood that Wilson was hired after Majer (ECF
No. 69 at 24, FN13); this is not true. ECF No. 57-13. This mistake appears to have caused the
Magistrate Judge to incorrectly conclude that the Lexion’s treatment of Wilson was consistent
with its treatment of Majer and explains why, given the later state date, why Wilson would not
have been terminated at the same time as Majer.
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accorded Majer to be “particularly problematic” and quite damaging to Lexion’s position. ECF
No. 69 at 25, FN14. The Magistrate Judge observed that “Lexion says nothing about Majer’s
allegations regarding Kirkpatrick.” ECF No. 69 at 25.
In its second objection to the Report and Recommendation, Lexion avers that similarly
situated employees were not treated differently and refutes the Magistrate Judge’s finding that
Lexion failed to explain or provide comparative evidentiary support regarding Kirkpatrick’s
performance. ECF No. 70 at 5-6, Footnote 9 and 10. In support of its argument, Lexion guides
the Court to Exhibit B, attached to its motion for summary judgment,9 which contains documents
demonstrating that Kirkpatrick performed substantially better than Majer in the area of new
growth. ECF No. 43-8 at 99-102.
To the extent the Magistrate Judge’s conclusion was primarily based upon an erroneous
assumption–that Kirkpatrick was a true comparative whose performance was the same as or
worse than Majer’s in the area of new growth and whom was not subjected to similar
treatment–Lexion’s objection is sustained on this point. After a de novo review of this issue, the
Court, nevertheless, concurs with the Magistrate Judge’s finding that there are genuine issues of
material fact with respect to whether similarly situated employees were treated differently.
Moreover, the record supports a finding of pretext under the third rebuttal test identified in
Manzer.
When the facts are viewed in a light most favorable to the non-moving party, which
requires the Court to analyze the performance of Lexion’s sales representatives based upon
9
Exhibit B was appropriately submitted for the Magistrate Judge’s review, a point
accurately made by Lexion’s counsel. ECF No. 70 at 5-6, FN 9.
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Majer’s espoused criteria–complete sales–the record reveals that Majer performed better than
several of Lexion’s other sales representatives who were permitted to continue employment. For
instance, Wilson, Kirkpatrick, and Spearman–all reporting to Majer’s supervisor,
Hawthorne–performed worse than Majer but were not terminated for their performance.10 ECF
No. 60 at 26.
Of greater significance is that, when analyzing the performance of Lexion’s sales
representatives using Lexion’s stated criteria of examining only “new growth” figures, there are
at least two individuals–Spearman and Dunn–who did not exceed Majer’s “new growth” sales
and were treated differently.11
Lexion has explained the dissimilar treatment of Spearman compared to Majer, by
emphasizing that Spearman was (a) the daughter of the owner of the company and (b) was
transferred out of sales based due to poor performance. ECF Nos. 70 at 6 and 62 at 6-7. Given
10
In comparing the sales figures of Majer’s co-workers to that of Majer, the Court used
the documentation identified by Majer. ECF No. 60 at 26, Footnotes 131-137.
In addition to supporting Majer’s position that she performed better than her co-workers,
the Court’s analysis raises additional credibility concerns. There appears to be inconsistencies in
the reported sales figures for some of the sales representatives. For instance, one of the
documents state that Kirkpatrick’s complete sales for 2006 was $279,339. ECF No. 58-63 at 4.
Another document indicates that Kirkpatrick total sales for that year were $161,193. ECF No.
58-63 at 3. There is also an inconsistency for the sale figures of another co-worker–Dunn. One
document indicates that his total sales for 2006 were $50,400 (ECF No. 52-6 at 10) which
conflicts with a spreadsheet indicating that his total sales were $22,360. (ECF No. 52-6 at 16).
Majer has also highlighted additional discrepancies in the sales data. ECF No. 60 at 26-28.
The Court concludes that these inconsistencies provide further justification for denying
Lexion’s Motion for Summary Judgment.
11
For 2006, Majer’s actual “new growth” figure was $20,627. ECF No. 62-2 at 31.
Spearman and Dunn’s figures for the same time period were $13,530 (ECF No. 58-68 at 11) and
$15,150 (ECF No. 52-6 at 10), respectively. Both Spearman and Dunn were not, however,
terminated by Lexion. ECF No. 70 at 6.
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Spearman’s familial relationship to the owner and the lack of evidence casting doubt upon this
relationship, a reasonable juror could attribute the difference in treatment to nepotism, which is
not actionable under Title VII. See Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1096 (6th
Cir. 1996) (finding allegations of nepotism, even if proven, would not constitute evidence of
impermissible discrimination under Title VII).
By contrast, Lexion’s treatment of Dunn cannot be so easily dismissed. Lexion has
argued that Dunn “was not similarly situated, as he was not supervised by [Majer’s supervisor]”
(ECF No. 72 at 1), the Court disagrees. The Sixth Circuit has made it clear that a mere
“difference in supervisors . . . does not make the employees dissimilarly situated.” Gibson v.
Shelly Co., 314 Fed. Appx. 760, 770 (6th Cir. 2008). Considering that Lexion has conceded that
all of the sales representatives’ supervisors “are equally involved in the hiring, training, and
termination of the sales reps” (ECF No. 43 at 8), Dunn would still be an appropriate
comparative.12 See id. at 771 (finding that the district court was in error by focusing on the
identity of the plaintiff’s supervisor when identifying similarly situated individuals because the
termination decision was made by a committee).
3. Reaction to Pregnancy Announcement
In its final objection, Lexion avers that the Magistrate Judge erroneously held that the
mere silence of Majer’s supervisor, Hawthorne, was sufficient to establish pretext. ECF No. 70
12
The Court also finds it compelling that while Dunn was plagued with poor
performance throughout his employment, Lexion did not terminate his employment. A document
relied upon by Lexion to show Majer’s poor sales figures shortly before she was terminated in
mid-2007 ironically demonstrates that Dunn continued to perform poorly even near Majer’s
termination date. ECF No. 57-13.
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at 8. Although Lexion acknowledges that in Asmo v. Keane, Inc., 471 F.3d 588, 594-596 (6th
Cir. 2006), the Sixth Circuit found that an employer’s silent response to an employee’s
pregnancy announcement could constitute evidence supporting pretext, Lexion argues that this
evidence, by itself, would be insufficient to make a showing of pretext. In support of its
argument, Lexion distinguishes Asmo from the instant case by highlighting that in Asmo, “silence
of a supervisor was one of among many reasons a reasonable jury could have found pretext. [But
in the case at hand], the silence of [Majer’s supervisor] is the only proffered evidence of pretext.”
ECF No. 70 at 8.
The Court need not decide whether Asmo permits an employer’s silence to be
independently sufficient to raise an issue of fact on a finding of pretext because Lexion’s entire
argument is premised on a faulty finding. Contrary to Lexion’s objection, the Magistrate Judge
did not rely solely upon the silence of Majer’s supervisor when concluding that Lexion’s
legitimate and non-discriminatory reason had been compromised. As discussed above, there are
genuine issues of material fact as to (1) the criteria used by Lexion in evaluating the performance
of its employees, (2) whether Majer performed poorly, and (3) whether she was treated
differently than other similarly situated sales representatives. These factors were all articulated
by the Magistrate Judge in recommending the denial of Lexion’s Motion for Summary Judgment.
ECF No. 69 at 18-27. Lexion’s objection is, therefore, overruled.
The Court concurs with the Magistrate Judge’s ultimate findings and concludes that
Majer’s report of Lexion’s response to her pregnancy is additional circumstantial evidence
supporting pretext under the second rebuttal test identified in Manzer.
21
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B. Honest Belief Rule
Lexion also complains that Majer was required to put forth evidence that demonstrates
that Lexion did not “honestly believe” in its proffered legitimate, non-discriminatory reason for
her termination. ECF No. 70 at 2-3. Lexion states that because she failed to meet this burden,
the Magistrate Judge erred in finding in favor of Majer as a matter of law. ECF No. 70 at 2-3,
and 7-8.
In support of its position, Lexion relies upon Sixth Circuit precedent which holds that an
employer may defeat an employee’s claim of pretext by showing that “the employer honestly
believed in the proffered reason given for its employment action.” Smith v. Chrysler Corp., 155
F.3d 799, 806 (6th Cir. 1998). The employer’s belief must be reasonably grounded on
“particularized facts that were before it at the time the decision was made” in order for an
employer’s proffered reason to be considered honestly held. Id. at 807. And, even if the
employer makes such a showing, the employee may produce proof to the contrary, thereby
rebutting the protection afforded by the rule. Id.
Applying this standard to the present case, the Court readily concludes that Lexion has
met its burden of pointing to “particularized facts” underlying its decision to terminate Majer’s
employment. As discussed above, Majer has presented sufficient evidence that casts serious
doubts upon the documents Lexion submitted in support of its decision to terminate Majer and
Lexion’s decision-making process in general. The record before the Court indicates that a jury
could reasonably reject Lexion’s averment that Majer had been terminated for poor performance
and infer that Lexion did not honestly believe in its proffered reason. Accordingly, granting
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Lexion’s Motion for Summary Judgment based upon its “honest belief” that Majer was a poor
performer is inappropriate.
VI. Conclusion
For the foregoing reasons, the Magistrate Judge’s Report and Recommendation is
adopted, in part, and modified, in part.
Lexion’s Motion for Summary Judgment is denied (ECF No. 43) and Majer’s Motion to
Strike Improper Evidentiary Material (ECF No. 64) is dismissed as moot.
This matter has been set for trial on November 7, 2011 at 9:00 a.m. and final pretrial on
October 19, 2011 at 10:30 a.m.
IT IS SO ORDERED.
June 1, 2011
Date
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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