Meisner v. ZymoGenetics Inc

Filing 288

ORDER RULING ON REPORT AND RECOMMENDATION adopting as supplemented by this order 257 Report and Recommendation; denying 134 Motion for Summary Judgment; terminating as moot 204 Motion in Limine; granting 216 Motion for Summary Judgment; terminating as moot 219 Motion in Limine; granting 252 Motion to Amend/Correct; deeming a supplemental objection and considering as such 275 Motion to Amend/Correct; granting 276 Motion for Leave to File. The decisions of the magistrate judge are affirmed as to 260 APPEAL OF MAGISTRATE JUDGE DECISION. Signed by Honorable Cameron McGowan Currie on 9/22/2014. (cbru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
RHONDA MEISNER,

)
)
Plaintiff,
)
)
v.
)
)
ZYMOGENETICS, INC., a wholly owned )
subsidiary of Bristol-Myers Squibb,
)
ZYMOGENETICS, LLC, a wholly owned )
subsidiary of Zymogenetics, Inc., and
)
TRACEY CALDERAZZO,
)
)
Defendants. )
____________________________________)

C/A No. 3:12-cv-00684-CMC-PJG

OPINION AND ORDER

Through this action, Plaintiff Rhonda Meisner (“Meisner”) seeks recovery from her former
employer, ZymoGenetics, LLC, and a related entity, ZymoGenetics, Inc., (collectively
(ZymoGenetics”), for alleged discrimination in employment in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), retaliation in violation of Title VII, and,
arguably, discrimination in violation of the Age Discrimination in Employment Act of 1967
(“ADEA”).1 Meisner also asserts a state law claim against ZymoGenetics under the South Carolina
Payment of Wages Act, S.C. Code Ann. § 41-10-10 et seq. (“SCPWA”). Finally, Meisner asserts
a slander claim against a co-worker, Tracey Caldarazzo (“Caldarazzo”).2
1

Meisner’s amended complaint relies solely on Title VII in alleging discrimination based
on gender, religion and age. Because age is not a protected class under Title VII, the court treats
Meisner’s age discrimination allegations as seeking relief under the ADEA
2

This Defendant’s name is spelled “Calderazzo” in the caption of the amended complaint,
ECF No. 30, and has never been formally modified. The court, therefore, utilizes that spelling in the
caption of this order. However, as documents filed by Defendants, including emails bearing this
Defendant’s signature block spell the name “Caldarazzo,” the court utilizes that spelling in the
remainder of the order. See, e.g., ECF Nos. 216-22 (Caldarazzo email); ECF No. 277 (Defendants’
Response to Plaintiff’s Objections to Report and Recommendation of the Magistrate Judge).

The matter is before the court on (1) Meisner’s appeal of orders denying her motion to amend
the complaint (ECF No. 260), (2) the parties’ cross-motions for summary judgment (ECF Nos. 134,
216), and (3) a variety of related and peripheral motions. For reasons set forth below, the court
resolves the appeal and pending motions as follows:
(1)

The orders denying Meisner’s motions to amend the complaint (ECF No. 199) and
reconsider that denial (ECF No. 256), challenged by Meisner’s appeal (ECF No.
260), are affirmed;

(2)

Meisner’s motion for summary judgment (ECF No. 134) is denied;

(3)

Defendants’ motion for summary judgment (ECF No. 216) is granted;

(4)

Meisner’s motion to amend the docket text order entered as ECF No. 269 (ECF No.
275) is deemed a supplemental objection and is considered as such;

(5)

Meisner’s motion for leave to file a reply in support of her appeal ( ECF No. 276) is
granted and the attached memorandum is considered;

(6)

Meisner’s motion to amend or correct her sur reply in opposition to Defendants’
motion for summary judgment (ECF No. 252) is also granted and the attachment is
considered; and

(7)

Meisner’s earlier motions in limine (ECF Nos. 204, 219) are terminated as moot in
light of the summary judgment rulings.

The court has previously granted another motion to file an additional memorandum and has
considered the additional filing. ECF No. 281 (motion); ECF No. 282 (order granting with
limitations); ECF No. 285 (reply in support of objection).
PROCEDURAL BACKGROUND
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(g), D.S.C., this
matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial proceedings and
a Report and Recommendation (“Report”). On November 21, 2013, the Magistrate Judge issued an
Order denying Meisner’s motion to amend the amended complaint. ECF No. 199. Meisner sought

2

reconsideration of that denial, which was denied by order entered July 30, 2014. ECF No. 256. On
the same day, the Magistrate Judge issued a Report recommending that Meisner’s motion for
summary judgment on her SCPWA claim be denied and Defendants’ motion for summary judgment
as to all claims be granted in full. ECF No. 257 (Report). The Report also recommended that certain
documents be unsealed and that two other motions be terminated (ECF Nos. 204, 219 (motions in
limine)).3 The Magistrate Judge advised the parties of the procedures and requirements for filing
objections to the Report and the serious consequences if they failed to do so.
Meisner appealed the denial of her motion to amend on August 13, 2014. ECF No. 260. She
also filed timely objections to the Report on August 25, 2014, arguing that the Report erred in
recommending the court deny Meisner’s motion for summary judgment and grant Defendants’
motion for summary judgment. ECF No. 265; see also ECF Nos. 261, 262 (motion seeking and
order granting an extension of the objection deadline).4 Meisner has subsequently filed several
motions and supplemental memoranda which have been fully considered along with Defendants’
opposition memoranda.5
3

The recommendation as to unsealing was adopted by separate docket text order as there
was no objection to this recommendation. ECF No. 266. By later orders, the court directed that
other documents previously submitted for in camera review be filed in the public record. ECF Nos.
271, 278.
4

The objections do not address Meisner’s allegations of age discrimination. Thus, Meisner
does not challenge the recommendation that summary judgment be granted to the extent any claim
is asserted under the ADEA.
5

The Magistrate Judge corrected one misstatement of fact in the Report by docket text order
entered after Meisner filed her objections. See ECF No. 269 (correcting misstatement of the dates
Meisner was terminated and the termination became effective and noting that “[t]his typographical
error in the background section does not alter the court’s analysis (which correctly relied on the 2010
dates) or the court’s recommendation with regard to any of Plaintiff's claims[.]”). One of Meisner’s
subsequent filings seeks amendment of this docket text order. ECF No. 275. The court has
construed this filing as a supplemental objection because it seeks to correct what Meisner perceives
as errors in the underlying Report, rather than errors in the docket text order.
3

DISCUSSION
I.

APPEAL OF DENIAL OF MOTION TO AMEND
The court first addresses Meisner’s appeal (ECF No. 260) of the Magistrate Judge’s order

(ECF No. 199) denying Meisner’s motion to amend the amended complaint (ECF No. 172) (“Motion
to Amend”). Because the Magistrate Judge also denied Meisner’s motion to reconsider the order
denying Meisner’s Motion to Amend (ECF No. 205) (“Motion to Reconsider”), the court treats this
appeal as also challenging the docket text order (ECF No. 256) that denied the Motion to Reconsider.
For the reasons set forth below, this court affirms the orders denying both Meisner’s Motion to
Amend and her Motion to Reconsider.
A.

Standard

Pursuant to 28 U.S.C. § 636(b)(1)(A), a Magistrate Judge is authorized to “hear and
determine any pretrial matter” other than eight specifically excluded motions. The Magistrate
Judge’s ruling on such a matter must be sustained unless it is “clearly erroneous or is contrary to
law.” Id.; see also Fed. R. Civ. P. 72(a) (addressing standard of review for “Nondispositive
Matters”). The eight excluded motions may still be referred to a Magistrate Judge, but must be
addressed by proposed findings and recommendations, which are subject to de novo review to the
extent objection is made. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
Motions to amend pleadings are not among those excluded from 28 U.S.C. § 636(b)(1)(A).
Motions to dismiss for failure to state a claim on which relief can be granted are excluded. This
raises the question whether a motion to amend which is denied based on futility should be treated
as a motion to dismiss for failure to state a claim and subjected to de novo review. The appellate
courts which have addressed this issue have concluded that it should not. See Hall v. Norfolk
4

Southern Ry. Col, 469 F.3d 590, 595 (7th Cir. 2006) (rejecting reasoning in various district court
opinions that would treat such a ruling as dispositive under 28 U.S.C. § 636(b)(1)); Maurice v. State
Farm Mut. Auto. Ins. Co., 235 F.3d 7, 9 n. 2 (1st Cir. 2000) (holding that “magistrate judge had the
authority to decide the motion to amend . . . outright”).
The court need not resolve this debate because the relevant standards are effectively the same
where, as here, the decision turns on an issue of law. If the ruling as to the legal issue is correct, it
is not “clearly erroneous or . . . contrary to law” under 28 U.S.C. § 636(b)(1)(A) and Rule 72(a).
Neither is it erroneous under a de novo standard of review pursuant to 28 U.S.C. § 636(b)(1)(B) and
Rule 72(b). See, e.g., Haines v. Liggett Group Inc., 975 F.2d 81, 91 (3d Cir. 1992) (“[T]he phrase
‘contrary to law’ indicates plenary review as to matters of law.”).
B.

Background

Filing of Action and Scheduling Orders. This matter was filed on March 8, 2012. The
first scheduling order was entered on May 9, 2012, and set a discovery deadline of November 27,
2012. ECF No. 12. Multiple amended scheduling orders followed. ECF No. 15 (entered June 27,
2012); ECF No. 28 (entered February 15, 2013); ECF No. 76 (entered May 30, 2013). The third (and
final) amended scheduling order was entered on May 30, 2013, and set a discovery deadline of
October 30, 2013. ECF No. 76.
Motion to Amend. The Motion to Amend that is the subject of this appeal is Meisner’s third
motion to amend the complaint.6 It was filed on October 23, 2013, seven days before expiration of

6

Meisner first sought leave to file an amended complaint in July 2012. ECF Nos. 17, 19.
This motion was granted over Defendants’ objection in February 2013. ECF Nos. 29, 30. Meisner
again sought leave to amend her complaint in August 2013, which motion Defendants also opposed
and the Magistrate Judge denied after oral argument. ECF Nos. 117, 119, 121. The Motion to
Amend that is the subject of Meisner’s appeal is, therefore, her third motion to amend the complaint.
5

the discovery deadline set by the third amended scheduling order. Through this motion, Meisner
sought to add slander and libel claims based on an allegedly false report Tracey Caldarazzo made
regarding complaints she received from Claus Brandigi, M.D. (“Dr. Brandigi”). ECF No. 172 at 2.
Defendants opposed the Motion to Amend on multiple grounds including, most critically,
futility. The futility argument rested, in part, on the applicable two-year statute of limitations. ECF
No. 184. Defendants noted that the proposed slander and libel claims were based on a January 2010
report, thus the challenged utterance occurred more than three years before the motion to amend was
filed.7 Id. at 2-3, 5-7. Defendants also argued the proposed claims were futile because the alleged
statements were privileged and the motion was untimely because Meisner failed to show good cause
for the delay in filing her Motion to Amend. Id. at 8-12. The last argument noted that the motion
was filed fourteen months after the deadline for moving to amend the pleadings and one week before
the close of discovery. Id. at 8-9.8 Defendants also noted that Meisner had documentary evidence
of the alleged defamatory statements no later than November 2012, though they acknowledged Dr.
Brandigi’s deposition, on which Meisner relied for the falsity of the reported complaint, predated the
Motion to Amend by only one month.

7

Defendants did not address the potential relation back of these allegations to the filing of
the original complaint. Relation back would not, however, aid Plaintiff as the original complaint was
filed in March 2012, more than two years after the alleged defamatory statement was made in
January 2010. See ECF No. 273 at 4 n.2 (addressing possibility of relation back in memorandum
in opposition to Meisner’s appeal).
8

Of the four scheduling orders, only the first two included a deadline for motions to amend
pleadings, and both set that deadline as August 7, 2012. The third scheduling order (second
amended scheduling order) was entered in January 15, 2013, five months after the deadline to amend
pleadings had passed. Consequently, neither the third nor fourth (third amended) scheduling orders
addressed or extended the deadline to move to amend pleadings.
6

Meisner did not file a reply to Defendants’ opposition memorandum and, consequently,
presented no written opposition to Defendants’ futility arguments.9 She did, however, have a second
opportunity to and apparently did address these arguments during a hearing on multiple motions held
on November 6, 2013. See ECF No. 199 (Magistrate Judge’s post-hearing order addressing
inapplicability of the discovery rule).
The Magistrate Judge ruled on various matters during the November 6, 2013 hearing, but
took the Motion to Amend under advisement. ECF No. 191 (minute entry). The Motion to Amend
was subsequently denied by order entered November 21, 2013. ECF No. 199. The denial was based
on a finding of futility in light of the applicable two-year statute of limitations. ECF No. 199 at 1
(noting allegations related to “actions that purportedly occurred over three years ago”). In reaching
this conclusion, the Magistrate Judge rejected an argument that the discovery rule applied to the
proposed slander and libel claims. Id. at 2.
Meisner sought reconsideration, arguing, in part, that the Magistrate Judge should have
applied the discovery rule to accrual of the proposed slander and libel claims. ECF No. 205 at 1-2.
Meisner also argued for tolling because the individual Defendant, Tracey Caldarazzo, was not
located within the state during most of the statutory period. Id. at 3. Defendants opposed
reconsideration noting that Meisner had failed to advance a proper basis for reconsideration. ECF
No. 211. Meisner filed a reply, briefly listing the grounds for reconsideration and focusing on her
tolling argument in asserting that she was advancing a proper ground for reconsideration. ECF No.
215 at 2 (“The Plaintiff is attacking the Defendants[‘] representation to the Court that the Statute of
Limitations has run without informing the Court of Ms. Caldarazzo’s out of State residency status
which subjects her to the tolling provision of the Statute of Limitations[.]”).

9

The deadline for filing a reply was November 4, 2013, two days prior to the hearing.
7

The Magistrate Judge denied Meisner’s Motion to Reconsider by docket text order entered
July 30, 2014, the same day the Report and Recommendation (“Report”) on the cross-motions for
summary judgment was entered. ECF No. 256. The docket text order denying the motion states only
that the motion is denied.10
Appeal. Meisner appealed the denial of her Motion to Amend on August 13, 2014. ECF
No. 260. As noted above, the court deems this appeal to also challenge denial of Meisner’s Motion
to Reconsider. The specifics of this appeal are addressed below.
C.

Discussion

Through her appeal, Meisner primarily (if not solely) challenges the Magistrate Judge’s
determination that the discovery rule is inapplicable to the proposed claims for slander and libel
because such claims are “actionable upon utterance.” ECF No. 260 at 1 (characterizing Magistrate
Judge’s ruling). Meisner concedes that “[t]he Supreme Court of South Carolina has not addressed
whether the discovery rule should apply to defamation actions hidden in the confines of an
employment investigation[,]” but argues that Fourth Circuit authority supports application of the
discovery rule in this context. Id. at 1 (citing Austin v. Torrington Co., 810 F.2d 416 (4th Cir.
1987)).11
The Fourth Circuit decision Meisner cites does not address either a statute of limitations
defense or the discovery rule. An underlying order of the district court, in contrast, addresses both
issues and appears to be the decision to which Meisner refers. See ECF No. 273 at 6 n.4

10

The Report addresses the inapplicability of the discovery rule with respect to the slander
claim pleaded in the amended complaint. ECF No. 257 at 26. While the bases of the claim in the
amended complaint and the proposed slander and libel claims differ, the law is the same.
11

The Fourth Circuit’s decision in Austin appears to have first been cited in Meisner’s
Motion to Reconsider. ECF No. 205 at 2.
8

(Defendants’ opposition brief); ECF No. 276 (Meisner’s reply); Austin v. Torrington Co., 611 F.
Supp. 191 (D.S.C.), reversed on other grounds 810 F.2d 416 (4th Cir. 1987).
While the district court in Austin held that the discovery rule applied to the particular claims
before it, the court emphasized that the “exception is limited to the facts of this case and does not
abrogate the date of utterance rule which applies in the traditional slander case.” Austin, 611 F.
Supp. at 195 (analogizing “surreptitious slander . . . to a false credit claim which injures, although
unknown to the injured party[,]” which claims some courts have found justify application of a
discovery rule). In referring to the facts of the case, the court appears to have found the following
elements present: (1) fraudulent concealment of the defamatory statement by the party raising the
statute; (2) failure of the innocent party to discover the facts which form the basis of her cause of
action; and (3) due diligence by the innocent party. See 611 F. Supp. at 194 (discussing cases in
which discovery rule was applied to fraudulently concealed defamatory statements).
In light of its reversal, albeit on other grounds, the district court’s decision in Austin is of
limited if any authority. It is, moreover, doubtful that the district court accurately predicted the
direction of South Carolina law, given the absence of any subsequent South Carolina decision
applying the discovery rule in similar circumstances in the nearly three decades since Austin was
decided.12 In any event, the facts of this case are distinguishable from those in Austin because
12

The district court decision in Austin has been cited in only one subsequent state court
decision, and was there introduced by a “cf” signal, indicating the case was cited for comparison.
See Jones v. City of Folly Beach, 483 S.E.2d 770, 774-75 (S.C. App. 1997) (noting Austin “applied
the discovery rule to an action for defamation but the ruling was limited to the facts of the case and
[the court] stated its holding ‘does not abrogate the date of utterance rule which applies in the
traditional slander case’”). Two other decisions, both from the District of South Carolina, have cited
the district court decision in Austin. One cited it for the continued vitality of the date-of-utterance
rule. See McBride v. WSPA/Media General, Inc., 2007 WL 1795835 *4 (D.S.C. 2007) (finding
claim untimely under the date-of-utterance rule). The other cited it for the more general proposition
that a two year limitations period runs “from the date [the claim] accrues.” Sunshine Sportswear &
Elec., Inc. v. WSOC Television, Inc., 738 F. Supp. 1499 (D.S.C. 1989)
9

Meisner has been on notice of the allegedly slanderous statements, though not all facts necessary to
support her claim, since she received a disciplinary letter in January of 2010.13
Meisner also refers to the “tolling provision for out of state Defendants” in her appeal. ECF
No. 260 at 2. She does not, however, argue that the tolling provision applies because one of the
Defendants is an individual who resided in another state during the relevant period. Instead, she
argues that this statutory provision should be extended to apply “when ‘notice of the tort’ is
unknown[.]” Id. In other words, Meisner would read the statutory tolling language relating to absent
Defendants (which has nothing to do with the discovery rule) to require extension of the discovery
rule to all causes of action. This interpretation is not supported by any legal authority or logical
argument. The statutory provision addresses a specific basis for tolling a statute of limitations. The
discovery rule is an accrual rule that is applicable only to certain categories of tort. There is no basis
for reading one into the other.
Meisner also argues that to apply the statutory tolling “protection for some citizens that have
been victims of a tort . . . and not to provide the same sort of statutory protections for other citizens
when they do not know about the tort would be a violation of the Equal Protection Clause of the 14th
[A]mendment of the United States Constitution.”

Id. (emphasis added).

While stated in

constitutional terms, this is simply another attempt to argue that the statutory tolling provision and
discovery rule should be read together so that the discovery rule applies to all causes of action, most
critically including claims for slander and libel. Again, this argument lacks logical or legal support.

13

In her reply in support of her appeal, Meisner states that her relationship with Dr. Brandigi
was referenced in her disciplinary letter dated January 22, 2010. While this letter may not have
contained all details necessary to support the proposed amendments to her complaint, it at least put
her on notice of the potential claim. Yet, Meisner waited more than two years to initiate this action
and seek discovery concerning the basis of the concerns referenced in the disciplinary letter.
10

In contrast, many cases hold that South Carolina does not extend the discovery rule to claims for
slander and libel, instead running the limitations period from the date of utterance. See, e.g., ECF
No. 273 at 5 (Defendants’ opposition memorandum listing numerous cases so holding).
For all of these reasons, the court finds that the Magistrate Judge correctly applied the law
in finding Meisner’s proposed amendments futile because the proposed amended claims are timebarred. The orders entered as ECF Nos. 199 and 256 are, therefore, affirmed.
The court will, however, amend ECF No. 199 in one respect. That is, the court amends the
Magistrate Judge’s order to hold that Meisner’s proposed amendments are futile due to application
of the statute of limitations even if the claims are treated as relating back to the filing of the original
complaint.14 As Defendants note, the claims accrued when the utterance occurred, in January 2010,
and the complaint was not filed until March 2012, more than two years later.
D.

Conclusion

For the reasons explained above, the orders denying Meisner’s Motion to Amend and Motion
to Reconsider are affirmed.
II.

DISPOSITIVE MOTIONS
A.

Standard of Review

With respect to dispositive motions, the Magistrate Judge makes only a recommendation to
this court. The recommendation has no presumptive weight, and the responsibility for making a final
determination remains with the court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is
charged with making a de novo determination of any portion of the Magistrate Judge’s Report and
Recommendation to which a specific objection is made. The court may accept, reject, or modify,
14

Plaintiff does not appear to have raised the relation-back argument. The court,
nonetheless, considers the possibility that it could apply.
11

in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to the
Magistrate Judge with instructions. See 28 U.S.C. § 636(b). In the absence of an objection, the
court reviews the Report and Recommendation only for clear error. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed
objection, a district court need not conduct a de novo review, but instead must only satisfy itself that
there is no clear error on the face of the record in order to accept the recommendation”) (internal
citation omitted).
In light of Meisner’s objection to all but one recommendation relating to the cross-motions
for summary judgment, the undersigned has conducted a de novo review of the entire Report and
Recommendation and has read all memoranda and exhibits filed in support of and opposition to the
cross-motions for summary judgment, as well as Meisner’s subsequent objections and related
evidentiary submissions. See supra n. 4 (noting Meisner did not object to dismissal of any ADEA
claim that might be asserted).15 Having fully considered both the evidence and arguments, the court
adopts the recommendations of the Report for reasons stated in the Report and as further addressed
below.
B.

Disparate Treatment – Termination
1.

No Direct Evidence of Gender Discrimination

The Report summarizes various comments and actions which Meisner maintains constitute
direct evidence that her termination was the result of gender discrimination, but concludes that none
of the cited evidence satisfies the relevant standard. ECF No. 257 at 7-10. The Report notes, in

15

Any materials filed in support of Meisner’s objections that were not timely submitted in
support of or opposition to the cross-motions for summary judgment are arguably untimely. The
court has, nonetheless, considered all evidentiary submissions as if timely filed.
12

particular, that isolated comments unconnected to the employment decision at issue do not constitute
evidence of discriminatory animus necessary to a Title VII claim. Id. at 8-9.
Meisner objects to the Report’s conclusion that she has not offered direct evidence of
discrimination. In support of this objection, Meisner points to a handful of comments or actions,
primarily by Jeff Fortino (“Fortino”), who was Meisner’s supervisor from October 2009 until her
termination in August 2010.16 For example, Meisner points to a question Fortino asked her in
October 2009: how she “ha[s] time to work with [four] boys.” ECF No. 265 at 2, 13-14 (Objection).
Neither this nor any of Meisner’s other cited comments or incidents are direct evidence that
the later challenged events (e.g., a January 20, 2010 disciplinary letter or August 2010 termination)
were discriminatory because none meet the dual requirements that they “reflect directly the alleged
discriminatory attitude and . . . bear directly on the contested employment decision.” Warch v. Ohio
Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006) (quoting Taylor v. Virginia Union Univ., 193 F.3d
219, 232 (4th Cir. 1999) (en banc). At most, Meisner has pointed to a few ambiguous comments
or actions that she argues suggest gender bias, but which are equally consistent with nondiscriminatory motives. This is not enough. See, e.g., Burns v. AAF-McQuay, Inc., 96 F.3d 728 (4th
Cir. 1996) (quoting O’Connor v. Consol. Coin Caterers Corp., 56 F.3d 542, 549 (4th Cir.) (“isolated
and ambiguous statements are too abstract, in addition to being irrelevant and prejudicial, to support
a finding of age discrimination”), rev’d on other grounds, 517 U.S. 308 (1996).
2.

Failure of Proof Under Burden-Shifting Framework

To the extent Meisner relies on the burden-shifting framework of McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), to make out her claim of discriminatory termination, her claim fails

16

Fortino had input into but was not the ultimate decisionmaker as to Meisner’s termination.
That decision was made in July 2010 and became effective in August 2010.
13

because ZymoGenetics has proffered a legitimate, nondiscriminatory reason for the termination and
Meisner has failed to proffer evidence raising a reasonable inference that the stated reason for her
termination was false. See ECF No. 257 at 10-16 (summarizing evidence relating to ZymoGenetics’
nondiscriminatory reason for Meisner’s termination and the absence of evidence that the proffered
reason was false and recommending summary judgment be granted on this basis). Given this clear
failure to demonstrate pretext, the court need not address whether Meisner has met her burden to
establish a prima facie case.
Stated Reason for Termination. Shortly after she was advised of her termination, Meisner
sent an email asking that she be given a written statement of the reason for the decision. ECF No.
277-1 at 2. The August 5, 2010 responsive email states as follows: “In summary, your termination
of employment was based on a history of interpersonal conflict, most recently manifested by two of
your top accounts no longer [being] willing to work with you.” Id.
The record contains overwhelming and uncontroverted evidence that this stated reason was
the true reason for Meisner’s termination, including evidence that ZymoGenetics received multiple
complaints from multiple sources about Meisner’s behavior during 2009 and 2010. The nature and
sources of these complaints are detailed in Defendants’ opening memorandum in support of
summary judgment. ECF No. 216-1 at 6-14 (memorandum listing complaints received from
Meisner’s co-workers, employees of Bayer, and key healthcare professionals at two of Meisner’s five
most important accounts); ECF No. 216-10 ¶¶ 7-9, 11-15 (Fortino declaration); see also ECF No.
239 at 17-19 (addressing, in reply, absence of evidence of pretext). The complaints included direct
reports from representatives of key accounts who indicated that they were uncomfortable with or did
not want to work with Meisner. ECF No. 216-10 ¶ 14 (Fortino declaration addressing his follow-up

14

inquiry with Joanie Wilson at Doctors Hospital); ECF No. 285-1 at 6 (Fortino contemporaneous
email addressing conference call with Wilson during which Wilson “many times . . . mention[ed]
that a relationship issue existed between [Meisner] and doctors (specifically Dr. Brandi[gi]) and
Pharmacy Director[,]” and a subsequent unsolicited call from Wilson to Ted Rogers at
ZymoGenetics advising that Meisner “was one of the main reasons inhibiting [Doctors Hospital
from] mov[ing] forward with our product”).17
Meisner’s proffered evidence of pretext. In her objections, Meisner points to evidence she
characterizes as direct and circumstantial evidence of pretext. Most critically as to circumstantial
evidence, Meisner focuses on evidence that (1) at least one allegation of an inappropriate
communication was falsely reported by a co-worker and (2) another was based on a physician’s
misunderstanding of something Meisner said to another physician. The evidence Meisner proffers
on these points is insufficient to raise an inference of pretext for the reasons set forth below.
Direct Evidence. The evidence Meisner proffers as direct evidence of pretext fails for the
same reasons noted above as to a direct evidence case. The comments and incidents relied on are
simply too isolated, attenuated from the relevant decisions, and ambiguous to support an inference
that the reason later given for Meisner’s termination was false.

17

Meisner suggests that ZymoGenetics has given inconsistent reasons for her termination
by characterizing the complaints from accounts as “refusing” to work with her when the complaints
may have been more mildly stated, such as that the accounts were “uncomfortable” working with
Meisner. This is a distinction without a difference given Meisner’s role as a representative of
ZymoGenetics, responsible for building positive relationships with the accounts. In any event, the
semantic differences do not cast doubt on ZymoGenetics’ stated reason for terminating Meisner: that
it had received complaints about Meisner from multiple sources, including from key personnel at two
of Meisner’s most important accounts.
15

False Report by Co-Worker. The court will assume without deciding that there is sufficient
evidence to show that a report made by Meisner’s co-worker, Tracey Caldarazzo, was false.18 The
allegedly false report was that Dr. Brandigi called Caldarazzo in November 2008 complaining that
Meisner had falsely accused Dr. Brandigi of having an affair with a nurse. This report was
apparently repeated to ZymoGenetics’ human resources representative, Katie Carrigan, in January
2010 and may have been considered as one item in support of a reported pattern of questionable
behavior mentioned in a January 22, 2010 disciplinary letter. See ECF No. 216-16 (Declaration of
Katie Carrigan attaching non-sequential bates-numbered documents ranging from Def 108-24
(handwritten notes of interviews of three employees)); ECF No. 280-1 at 2 (bates-numbered
document DEF 000113 (handwritten notes that appear to report Carrigan’s interview of
Caldarazzo)). Meisner has not, however, pointed to evidence that the individuals involved either in
the investigation of a January 19, 2010 incident, the decision to issue a disciplinary letter as a result,
or the later decision to terminate Meisner’s employment were aware of the possible falsity of
Caldarazzo’s report. Neither does the evidence raise a reasonable inference that Caldarazzo’s

18

Meisner worked for ZymoGenetics as a surgical sales manager (“SSM”). This position
entailed sales and marketing responsibilities for a specified territory or accounts, rather than
management of other employees. Caldarazzo was a medical science liaison (“MSL”) who worked
with the same accounts. As MSL, Caldarazzo focused on educating physicians, pharmacists and
other health care professionals on the science behind the marketed product, Recothrom.
In a document titled “Motion to Alter and Amend the Magistrate Judge’s Findings and Facts
pursuant to Rule 59-e FRCP,” Meisner challenges, inter alia, the characterization of Caldarazzo as
“the medical science liaison associated with Ms. Meisner’s accounts.” ECF No. 275 at 2 (item no.
3) (noting that Meisner also worked with another MSL, Glenn Herbst, who was with a different
entity, Bayer Healthcare Pharmaceuticals (“Bayer”)). The court treats ECF No. 275 as a
supplemental objection and has considered the arguable incompleteness of the statement that
Caldarazzo was the MSL, rather than one of the MSLs, with whom Meisner worked. Even if the
statement in the report is incomplete, it is not incorrect as the challenged statement is offered to
explain Caldarazzo and Meisner’s relative roles.
16

allegedly false report was a significant factor either in issuance of the disciplinary letter or Meisner’s
later termination, given the overwhelming evidence of other grounds for both decisions.19
Dr. Brandigi’s Reported View of Meisner. Similarly, while Meisner believes Dr.
Brandigi’s reported view that Meisner was dishonest and disrespectful was based on a
misunderstanding, she does not challenge the undisputed evidence that Dr. Brandigi, in fact, held
and reported this opinion to ZymoGenetics. See Meisner dep. at 163-64 (testifying that Dr.
Brandigi’s complaint was based on a misunderstanding of statements Meisner made to another
doctor but conceding that “[Dr.] Brandigi blew another gasket and called Valerie” Darling, who was
then Meisner’s supervisor, regarding this alleged statement). There is also uncontroverted evidence
that, shortly after he became Meisner’s supervisor in late 2009, Fortino learned that Dr. Brandigi had
complained that Meisner was dishonest and disrespectful. ECF No. 216-10 ¶¶ 3, 8. In his
deposition, Dr. Brandigi confirmed that he held and reported this view to ZymoGenetics. Brandigi
dep. at 15-16, 56; see also Joanie Wilson decl. ¶ 7 (ECF No. 216-19) (stating that Dr. Brandigi
reported to her that he believed Meisner lied to his friend and he did not want to meet with Meisner
because of this belief).20

19

The January 22, 2010 disciplinary letter focused on events which occurred at a regional
meeting on January 19, 2010. Specifically, it addressed comments Meisner made to a co-worker
regarding the co-worker’s religion and ethnicity and Meisner’s “appearing to have over-consumed
alcohol and being overly intoxicated” at the time. ECF No. 216-10 at 17-18. In one paragraph of
the seven paragraph letter, it refers to “concern[] that the behaviors and conduct described . . . may
be part of a pattern of issues and could be related to your performance” and gives, as examples “the
situation with Dr. Brandig[i] and the perception held by some of your co-workers that you have the
tendency to engage in discussions which are not productive or appropriate.” Id. at 17.
20

In her declaration, Meisner indicates that Dr. Brandigi’s first complaint regarding this
issue was received sometime soon after July 2008. Meisner Decl. ¶ 10 (ECF No. 228-8) (also
suggesting source of misunderstanding could have been comment by Caldarazzo to a doctor who
may have then passed it on to Dr. Brandigi’s friend). The date suggested by Meisner is consistent
with Fortino’s claim that he was told of Dr. Brandigi’s negative opinion of Meisner when he became
her supervisor in October 2009.
17

Adequacy of Investigation.

Meisner focuses on whether she actually engaged in

unprofessional conduct and the adequacy of ZymoGenetics’ investigation into such complaints. This
focus misses the mark. To demonstrate pretext, Meisner must establish that the legitimate reason
given for her termination was not the true reason. E.g., Holder v. Raleigh, 867 F.2d 823, 829 (4th
Cir. 1989) (“‘A reason honestly described but poorly founded is not a pretext[.]’”) (quoting Pollard
v. Rea Magnet Wire Co., Inc., 824 F.2d 557, 559 (7th Cir. 1987). It does not matter that her
employer may have erred in concluding that the reported problems existed or that Meisner was at
fault in creating the problems. Id.; see also Pence v. Tenneco Auto. Operating Co., 169 Fed. App’x
808, 811 (4th Cir. 2006) (discrimination law “is not violated when an employer discharges an
employee because of a mistaken perception of misconduct”).
Comparators. Meisner also argues that her comparator evidence raises an inference of
pretext. This argument is not well founded for reasons detailed in the Report and Defendants’
response to Meisner’s objections. ECF No. 257 at 12-14 (Report); ECF No. 277 at 10-15
(Defendants’ opposition memorandum).
“Boys’ Club” Atmosphere. Meisner’s reliance on Eric Diello’s testimony regarding a
“boy’s club” atmosphere at ZymoGenetics also fails to raise an inference of pretext. Diello testified
that he was referring to a situation where certain employees helped each other out, allowing some
to advance based on friendship rather than professional abilities. Diello dep. at 113-14. Diello
testified that he did not believe Fortino was part of this “club” and Diello had never observed Fortino
treating people differently based on their gender or any other protected characteristic. Id. at 113,
118.
Other Circumstantial Evidence. Other “circumstantial evidence” addressed by Meisner
is either based on speculative inferences or wholly unsupported. See, e.g., ECF No. 277 at 16-17
18

(Defendants’ opposition to Meisner’s objections, addressing the absence of evidence to support
Meisner’s argument that there was a pattern of terminating females because of their gender).21
C.

Discriminatory Failure to Promote/Performance Appraisal

The Report recommends that Defendants’ motion for summary judgment be granted as to
Meisner’s claim that she was denied promotions and given less favorable performance appraisals
because of her gender. Meisner objects to this recommendation.
The court finds Meisner’s objection to this recommendation to be without merit for two
reasons. First, Meisner abandoned these claims by failing to address them in opposition to
Defendants’ motion for summary judgment. See ECF No. 257 at 22 (Report). Second, even if not
abandoned, Meisner has failed to direct the court to evidence that would overcome the grounds on
which ZymoGenetics argued for summary judgment including, as to some aspects of the claims, a
failure to timely raise the claim or exhaust administrative remedies. Meisner has, moreover, failed
to point to any evidence that ZymoGenetics’ stated reason for the timely raised (and administratively
exhausted) nonpromotion claim (training position) was not its true reason: that ZymoGenetics, in
fact, believed that the person hired was the better qualified candidate.

21

In a post-objection filing, Meisner notes a misstatement in the Report regarding Valerie
Darling’s Termination Date. ECF No. 275 at 2 (noting Darling was terminated in July 2009 rather
than March 2009). Meisner asserts this error is important because Darling was the only female sales
manager and was terminated by the same decisionmaker as was Meisner, thus, presumably,
suggesting this is some evidence of an anti-female bias. Meisner has not, however, presented
sufficient evidence regarding the circumstances of Darling’s termination for any such inference to
be raised. See, e.g., ECF No. 277 at 17 (Defendants’ opposition memorandum addressing the
absence of such evidence); Meisner dep. at 112, 117-18 (conceding she had no knowledge of the
reasons for Darling’s termination other than that there was a downsizing at the time); see also Diello
dep. at 55 (stating his understanding of why Darling left as a “struggle to communicate well and
work together well” with Owens, as well as “low sales in her region”).
19

Further, as to her allegation that her performance review was discriminatory, Meisner asserts
that a reference in her performance review to “‘inappropriate conversations with’ Dr. Brandigi” is
“an obvious reference to Ms. Caldarazzo’s slander[]” and that the very limited time Fortino had been
Meisner’s supervisor somehow suggests discriminatory motivation. ECF No. 265 at 28 (objection).
The actual reference in the December 2009 review is more generic, as it refers simply to “Physician
Relationship issues.” Even assuming this generic comment refers specifically to Meisner’s
difficulties with Dr. Brandigi, there is no reason to link it to Caldarazzo’s allegedly false report.
Further, even if there was such a link, there is no reason to believe Fortino was aware that the report
was false or to link the alleged falsity (or his short tenure as Meisner’s supervisor) to a gender-based
discriminatory motivation.
Meisner has, moreover, attributed the generic “physician relationship” comment in this
December 2009 review and the reference to Dr. Brandigi in the January 2010 disciplinary letter to
other motives including, most critically, that they were in retaliation for Meisner’s far earlier
complaints about Dr. Brandigi, rather than to Dr. Brandigi’s complaints about Meisner. ECF No.
265 at 28-29 (relying on this motivation in support of her retaliation claim). Fortino’s declaration,
in contrast, avers he learned in October of 2009 that Dr. Brandigi viewed Meisner as dishonest and
disrespectful. ECF No. 216-10 ¶ 8.
Fortino’s claimed motivation is, at the least, more consistent with the other evidence than
Meisner’s speculative and multiple claims of some other, more nefarious (though not necessarily
discriminatory) motivation. Moreover, Meisner herself averred that she had not called on Dr.
Brandigi for a substantial period of time before Fortino became her supervisor, a circumstance
reasonably suggesting to her supervisor that there were “relationship issues” between Meisner and
at least one important contact at one of her most important accounts. ECF No. 228-8 ¶ 3 (Meisner’s
20

declaration). She also testified that, during her first conversation with Fortino, he brought up that
he understood, apparently from Caldarazzo, that there were relationship issues between Meisner and
Dr. Brandigi. Meisner dep. at 247-48. Meisner further testified that Fortino stated that he intended
to “work to mend that fence[,]” though, in Meisner’s view, he never took such action. Id. This
testimony is consistent with Fortino’s claim that, in October 2009, he learned that Dr Brandigi “had
complained that Ms. Meisner had been dishonest and disrespectful,” and that this, combined with
complaints from Bayer, was the basis for his comment in and relating to the review that Meisner
“needed to improve on building relationships[,]” and “needed to use better judgment in
communicating with her peers and with potential customers.” Fortino decl. ¶ 10.
D.

Religious Discrimination

The Report recommends summary judgment be granted in favor of Defendants on Meisner’s
claim for religious discrimination. Meisner objects to this recommendation.
The court adopts the Report’s recommendation over Meisner’s objection for multiple reasons
including but not limited to the following: (1) the reprimand on which this claim is based was not
an adverse employment action; and (2) no similarly situated employee outside of Meisner’s protected
class (Christian) was treated differently under similar circumstances (where the discipline was based
on the employee being “overly intoxicated” at a company event and making ethnically or religiously
disparaging comments to co-worker). To the extent Meisner now attempts to recast her claim as one
of failure to accommodate, her recharacterization of the claim comes too late and, in any event, lacks
evidentiary support. See ECF No. 265 at 23-24 (Meisner’s objection); ECF No. 277 at 26
(Defendants’ opposition).

21

E.

Hostile Environment

Meisner objects to the recommendation that summary judgment be granted on her hostile
environment claim. Her arguments fail to persuade the court that there is any error in the Report
relating to this claim. Meisner may have experienced some corrections from her supervisors that she
felt were unwarranted and some conflict with co-workers that made her uncomfortable. There is,
however, no evidence that either difficulty was because of a protected characteristic. Neither is there
evidence that the difficulties were sufficiently severe or pervasive to support a hostile environment
claim.
F.

Retaliation

Meisner objects to the recommendation that summary judgment be granted on her retaliation
claim. This objection is not well founded.
The prior complaint on which Meisner relies for this claim was relayed to Caldarazzo and
Darling in November 2007. Meisner dep. at 153 (noting concern was raised because of behavior of
Dr. Brandigi and another physician). The complaint related to Meisner’s concerns that female
representatives should not call on physicians associated with the Burn Unit alone. The concern was
addressed to Meisner’s satisfaction at that time, with instructions to call on this unit as a group. Id.
at 160.
For purposes of this order, the court accepts Meisner’s claim that she reported this complaint
to Fortino soon after he became her supervisor in October 2009. ECF No. 228-8 ¶ 3. There is,
however, no evidence of a causative link either between the complaint itself (in 2007) or Fortino’s
receipt of information about the complaint (in October 2009) and Meisner’s later termination (in
August 2010). The only suggested connection is temporal and the time gaps (several years between
22

complaint and termination and over seven months between Fortino’s receipt of information and
termination) are too great to raise an inference of causation based on temporal proximity.
No other plausible evidence of causation is suggested. As discussed above with respect to
Meisner’s claim based on her performance review, Meisner has attributed at least two possible
motivations to the references to “Physician relationship issues” in her December 2009 performance
appraisal and a “situation with Dr. Brandig[i]” in her January 2010 disciplinary letter: first, that the
comments refer to a false report by Caldarazzo; and second, that the comments refer to Meisner’s
complaint about Dr. Brandigi. In contrast to these two possible motives (only one of which would
support a retaliation claim), Defendants have presented evidence that Fortino had received
information that Dr. Brandigi believed Meisner was dishonest and disrespectful, a report consistent
with Dr. Brandigi’s own testimony.
In any event, for the same reasons addressed above as to the gender discrimination claim,
there is no evidence that the reason stated for Meisner’s termination, her “history of interpersonal
conflict, most recently manifested by two of [Meisner’s] top accounts no longer being willing to
work with [her,]” was not the true reason. See supra § II.B.; Brandigi dep. at 56; Meisner dep at
163-64, 167; Meisner dep. at 293-94 (ECF No. 277, Ex. F) (conceding that Dr. Brandigi continued
to complain about her up to the time of her termination. ).
G.

Slander Claim

Meisner’s objection to the recommendation that Defendants’ motion for summary judgment
be granted as to her slander claim is without merit. The claim is time-barred for reasons addressed
in the Report.

23

H.

SCPWA Claim

Meisner’s objection to the recommendation that her motion for summary judgment be denied
and Defendants’ motion be granted as to her claim under the South Carolina Payment of Wages Act
is without merit for reasons addressed in the Report. Quite simply, Meisner was not entitled to the
claimed sums under the clear terms of the long-standing written policy governing this aspect of her
pay.
I.

Age-Based Claim

Meisner has not objected to the recommended grant of summary judgment on any age-based
discrimination claim that may be suggested by her allegations. The court, therefore, adopts this
recommendation for the reasons set forth in the Report. The court would, moreover, reach the same
conclusion under the de novo standard of review as Meisner has presented no evidence of any agebased motivation for her termination.
J.

Additional Claims

The court adopts the Report’s recommendation that the court not consider any claims raised
for the first time in opposition to summary judgment.
CONCLUSION
For the reasons set forth above, the court affirms the Magistrate Judge’s orders denying
Meisner’s Motion to Amend and Motion to Reconsider. ECF Nos.199, 256. The court adopts the
Report and Recommendation in full as supplemented by this order, ECF No. 257, and rules as
follows on the various pending motions:
(1)

The orders denying Meisner’s motions to amend the complaint (ECF No. 199) and
reconsider that denial (ECF No. 256), challenged by Meisner’s appeal (ECF No.
260), are affirmed;
24

(2)

Meisner’s motion for summary judgment (ECF No. 134) is denied;

(3)

Defendants’ motion for summary judgment (ECF No. 216) is granted;

(4)

Meisner’s motion to amend the docket text order entered as ECF No. 269 (ECF No.
275) is deemed a supplemental objection and is considered as such;

(5)

Meisner’s motion for leave to file a reply in support of her appeal ( ECF No. 276) is
granted and the attached memorandum is considered;

(6)

Meisner’s motion to amend or correct her sur reply in opposition to Defendants’
motion for summary judgment (ECF No. 252) is also granted and the attachment is
considered; and

(7)

Meisner’s earlier motions in limine (ECF Nos. 204, 219) are terminated as moot in
light of the summary judgment rulings.

IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
September 22, 2014

25