Bach v. Centocor Ortho Biotech Inc et al

Filing 24

ORDER signed by Chief Judge Charles N Clevert, Jr on 3/29/2012 Denying 12 Motion for Extension of Time; Denying 14 Motion to Amend/Correct Complaint; Granting 4 Motion to Dismiss; and Dismissing case. (cc: all counsel, via US Mail to Plaintiff) (nts)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MARGARET BACH,
Plaintiff,
v.

Case No. 11-C-0444

CENTOCOR ORTHO BIOTECH INC.,
JOHNSON & JOHNSON,
Defendants.

DECISION AND ORDER
DENYING PLAINTIFF’S MOTION FOR EXTENSION OF TIME (DOC. # 12)
DENYING PLAINTIFF’S MOTION TO AMEND COMPLAINT (DOC. # 14)
AND GRANTING DEFENDANT'S MOTION TO DISMISS
PURSUANT TO FED. R. CIV. P. 12(B)(6) (DOC. # 4)

On April 12, 2011, Margaret Bach filed a pro se complaint in Milwaukee County
Circuit Court alleging that her employer, Centocor Ortho-Biotech, Inc., and its parent
corporation, John & Johnson, Inc., violated their implied employment contract set forth in
the Johnson & Johnson credo and other documents, wrongfully discharged her in violation
of public policy, and discriminated against her because she is an unmarried woman with
a disabled child. Defendants filed a notice of removal citing federal claims and diversity
jurisdiction, and moved to dismiss. After defendants wrote to the court because Bach
failed to respond, Bach filed a tardy motion for extension of time and motion to amend the
complaint.1 Bach cites a confluence of events, including her son’s increase in seizures and

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For purposes of the record, it should be noted that Bach, a Marquette Law
School graduate, is well versed in the law, familiar with the rules governing litigation,
and aware of her obligations to respond to motions.
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aggressive behaviors, an IRS audit, and a hearing before the State Board of Bar
Examiners as reasons why she should be granted an extension of time to respond to the
dismissed motion. Nevertheless, during the hearing on March 27, 2012, Bach conceded
that she knew to ask opposing counsel for an extension but she did not feel it would be
worthwhile. In addition, she admitted that she set other priorities and attended to them,
including litigation in the state court. Consequently, the court finds no basis to grant the
extension. Moreover, the proposed amended complaint fares no better than the original
complaint in stating a claim. Hence, the motion to amend the complaint will be denied.
Federal Rule of Civil Procedure 15 governs motions to amend complaints. Because
Bach did not file the motion to amend within twenty-one days of the filing of the motion to
dismiss, she must seek leave from the court and such leave shall be freely given when
“justice so requires.” Fed. R. Civ. P. 15(a)(2). The court “need not allow an amendment
when there is undue delay, bad faith, dilatory motive, undue prejudice to the opposing
party, or when the amendment would be futile.” Bethany Pharmacal Co., Inc. v. QVC, Inc.,
241 F.3d 854, 861 (7th Cir. 2001) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227,
9 L. Ed. 2d 222 (1962)). An amended complaint is considered to be futile if it could not
withstand a motion to dismiss. See Smart v. Local 702 Intern. Broth. Of Elec. Workers,
562 F.3d 798, 811 (7th Cir. 2009).
To survive a Rule 12(b)(6) motion to dismiss, the complaint first must provide a short
and plain statement of the claim showing that the pleader is entitled to relief such that the
defendant is given “fair notice of what the claim is and the grounds upon which it rests.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed.2d 80 (1957)).

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Second, the factual allegations in the complaint must be sufficient to raise the possibility
of relief above the “speculative level,” assuming that all of the allegations in the complaint
are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir.2007)
(quoting Twombly, 550 U.S. at 555).
Bach argues that amendment of her complaint is necessary to “clarify the precise
statues at issue in her claim for wrongful discharge for public policy reasons and provide
added clarity with the documents in question, and supporting detail.” She concedes that
the statute of limitations has run on her claim for gender, marital status, and disability
discrimination. (Doc. 15 at 3.) Similarly, Bach concedes that the Equal Right Division of
the Wisconsin Department of Workforce Development has no record of any filing which
may preclude claims under the Wisconsin Fair Employment Act.

(Doc. 15 at 4.)

Nevertheless, she maintains that she can proceed on a claim that she was retaliated
against for requesting accommodation.
While the retaliation claim does not appear in the original or proposed amended
complaint, Bach identified a multiplicity of new claims. Under federal law, Bach alleges
claims under the False Claims Act, 31 U.S.C. §§ 3729 et seq., the National Labor
Relations Act, the Family Medical Leave Act, 29 U.S.C. §§ 2601 et seq, and various Food
and Drug Administration Laws.
With respect to the False Claims Act, paragraph 36 of the complaint charges that
defendants received medicaid and medicare payments for Remicade due to “false
promotion.” The False Claims Act prohibits the submission of false and fraudulent claims
to the government, and authorizes private citizens to enforce its provisions. 31 U.S.C. §
3729(a), (b)(1); see Glaser v. Wound Care Consultants, Inc., 570 F.3d 907, 912 (7th Cir.

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2009). To pursue such an action, a relator must file her complaint under seal for at least
sixty days, which gives the government an opportunity to investigate the claim and to
determine whether to intervene. 31 U.S.C. § 3730(b)(2). Independent of Bach’s failure to
follow the procedure set forth in the statute, the amended complaint does not identify the
“specific false claims for payment or specific false statements made in order to obtain
payment” from the government. United States ex rel. Garst v. Lockheed–Martin Corp., 328
F.3d 374, 376 (7th Cir. 2003). Therefore, such amendment would be futile.
Next, the claim under the National Labor Relations Act fails because Bach admits
that “this claim too has missed the statute of limitations to obtain specific relief through the
National Labor Relations Board.” (Doc. 10, Am. Complaint at ¶ 37.)

Bach’s Family

Medical Leave Act claim is similarly time barred. Any claim must be filed within two years
of the alleged misconduct. 29 U.S.C. § 2617(c)(1). Bach complains of an incident on
September 17, 2008, in which she was “given a written warning threatening termination for
requesting two hours off for her disabled son, and not provided with a flexible work
schedule after being physically attacked and injured by her disabled son.” (Doc. 14, Am.
Complaint at ¶ 27.) Moreover, Bach never alleges that she requested unpaid leave under
the FMLA. Indeed, Bach writes that “she felt restrained form [sic] bringing up family
medical leave, knowing it would not be well received.” (Doc. 15 at 6.)
Bach’s final claims under federal law reference various sections of the Food and
Drug Administration: 21 U.S.C. § 352 Misbranded Drugs or Devices, 21 U.S.C. § 355 New
Drugs, 21 U.S.C. § 321(n) Misleading Advertising, 21 C.F.R. §§ 202.1(e)(3)(I),
(e)(6)(i),(viii), (e)(7)(I), (iii) and(viii), 21 U.S.C. § 360(aaa) Requirements for dissemination
of treatment information on drugs or devices, 21 U.S.C. § 502 Misbranded drugs or

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devices, Food and Drug Administration, HHS Part 203 on Prescription Drug Marketing, and
21 U.S.C. § 355a, section 505A Pediatric Studies of Drugs. At paragraph 39, Bach
asserts:
[i]n general, no drug can be promoted without an FDA
approved indication that it was properly studied to be safe and
efficacious. No promotional materials can be used that have
not been approved by the FDA. All promotional materials have
to contain fair balance so no highlighting of medical articles is
allowed. Specific pediatric studies must be done before any
use is approved in children.
The Food, Drug and Cosmetic Act has not created, nor has it implied, any private right of
action or right to relief for misbranding or any other violation of that Act or FDA regulations.
Pacific Trading Co. v. Wilson & Co., Inc., 547 F.2d 367, 367–8, 370–1 (7th Cir. 1976).
Moreover, Bach cites the law without providing any factual predicate for the claims.
Turning to the proposed amendments arising under the Wisconsin Statutes, these
claims fall into three categories: (1) claims that require Bach to exhaust her administrative
remedies; (2) claims that do not provide for a private right of action; and (3) claims that are
time barred. Under the first category, Bach has alleged violations of Wis. Stat. §§ 103.02,
103.10, 103.455, 109.075(4), 109.03(5), and Wis. Admin. Code DWD § 274.02(3). Section
103.02 of the Wisconsin Statutes provides that “no person may be employed or be
permitted to work in any place of employment or at any employment for such period of time
during any day, night or week, as is dangerous or prejudicial to the person’s life, health,
safety or welfare.” Section 103.02 references Wis. Stat. § 111.322(2m) and Chapter 111
sets forth the procedure for exhausting administrative remedies prior to filing a complaint.
See Wis. Stats. §§ 111.321 to 111.322 and 111.39 to 111.397. Bach concedes that she
did not pursue her administrative remedies.
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Likewise, if Bach had a claim under Wis. Stat. § 103.10(1m), she was required to
pursue her administrative remedies prior to seeking leave to amend in this court. Section
103.10(1m) provides that the “legislature finds that the provision of family and medical
leave that is uniform throughout the state is a matter of statewide concern “ and that any
local laws inconsistent with that would be “logically inconsistent with and would defeat the
purpose of, and would go against the spirit of the section.” Bach has not identified any
inconsistent city, village, town or county ordinances, and did not file her administrative
claim prior to seeking judicial review.
Another statute requiring exhaustion of administrative remedies is Wis. Stat. §
103.455, Deductions for faulty workmanship, loss, theft or damage. That section provides
that “no employer may make any deduction from the wages due or earned by an
employee, who is not an independent contractor, for defective or faulty workmanship, lost
or stolen property or damages to property,” unless the employee so authorizes in writing.
There are no allegations in the proposed amended complaint that provide any factual basis
for such claim. Moreover, she failed to exhaust the administrative remedies mandated by
Wis. Stat. § 111.322. See Wis. Stat. §§ 111.321 to 111.322 and 111.39 to 111.397.
Section 109.075(2) applies to situations where an employee decides to cease
providing health care benefits in this state. Bach alleges nothing more than her employee
benefits terminated when her position was terminated. Aside from failing to provide any
factual basis for the claim, she did not exhaust the enforcement procedure set forth in Wis.
Stat. § 109.075(4).
Next, Wis. Stat. § 103.13 allows a current or former employee to inspect personnel
documents but does not vest an employee with a private remedy. Garner v. State, 2011
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WI App 1, 330 Wis. 2d 833, 794 N.W.2d 927 (unpublished).
Other statutory claims are time barred. Wis. Stat. § 893.44(1) provides that “any
action to recover unpaid salary, wages, or other compensation for personal services shall
be commenced within two years after the cause of action accrues or be time barred.” An
aggrieved employee may also file a statutory wage claim with the Department of Workforce
Development to secure payments of monies earned. Bach cites Wis. Stat. § 109.01(3)
which defines wages as “remuneration payable to an employee for personal services,
including salaries, commissions, holiday and vacation pay, overtime pay, severance pay
or dismissal pay ... bonuses and any other similar advantages agreed upon between the
employer and employee or provided by the employer to the employees as an established
policy.” This statutory definition is offered to support Bach's claim that she should have
been reimbursed for the full amount of her law school tuition and that she did not receive
“comp time” for frequent evening programs, significant paperwork, weekend conference
and travel on weekends.” (Doc. 14 at ¶ 30.) The statute contemplates recovery for
amounts due under the employment contracts. Even if Bach had alleged that the amounts
were due under an employment contract, she did not file the claim within two years or
pursue a claim with DWD. Hence, such claim is time barred.
Along the same lines, Bach alleges that she did not receive a work free thirty minute
meal period as required by Wis. Stat. § 109.03(5) and Wis. Admin. Code DWD 274.02(3).
She asserts that she was required to work “countless breakfast, lunch, and dinner
programs” without compensation but does not contend that she did not receive a thirty
minute meal period. In any event, she never raised this claim within the two year limit set
forth in Wis. Stat. § 893.44.
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Another set of claims in the proposed amended complaint arise from Bach's theory
that her termination violated an implied employment agreement. Bach cites to various
documents, including work policies, and a company credo to support her theory that she
was wrongfully discharged.
In Wisconsin, an employee is terminable at the will of either an employer or an
employee without cause. Wolf v. F & M Banks, 193 Wis. 2d 439, 449, 534 N.W. 2d 877
(Ct. App.1995). Wrongful discharge of an employee-at-will occurs only when the discharge
is contrary to a fundamental or well-defined public policy or an abrogation of the at will
relationship as evidenced by an express or implied contract. See Ferraro v. Koelsch, 124
Wis. 2d 154, 157-58, 368 N.W.2d 666 (1995); Garvey v. Buhler, 146 Wis. 2d 281, 287, 430
N.W.2d 616 (Ct. App. 1988).
Nothing in the documents attached to the proposed amended complaint abrogate
the at will relationship. Indeed, each of the attached documents expressly disclaims any
intent to alter the at will relationship. The Performance and Conduct Standards Policy
states that “nothing in this policy is intended to alter the employee’s at-will status of
employment with the Company.” (Doc. 14 at Ex. 9.) The Flexibility and Flexible Work
Arrangements Policy, Work, Personal & Family Time-Off Policy, Personal Leave of
Absence Policy, and the Sick Time Policy” all state that the respective policies do “not
create any contractual rights or obligations, whether express or implied.” (Doc. 14 at Exs.
5, 6, 7, and 8.) The Chicago G-Force Expectations document sets forth the company’s
minimum expectations and notes that “expectations may change due to Business needs.”
(Doc. 14 at Ex. 2.) On their face, none of these documents, including the company credo,
give rise to an express or implied contract that would preclude defendants from firing Bach
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without cause.
Finally, Bach alleges she was “promised no one at Centocor would retaliate against
her for reporting her manager for the illegal binder violating FDA regulations by John
Murray, Maripat Rhood, and the Johnson & Johnson attorney, Joe Braunruether.” (Doc.
14 at ¶ 35.) She further contends that Manager Tracey Clery “had a learning disability that
led to inaccurate performance appraisals and Margaret’s ultimate termination.” (Doc. 14
at 11.)
To the extent that Bach is asserting a promissory estoppel claim, she must allege
that: (1) the promise is one that the promisor should reasonably expect to induce action
or forbearance of a definite and substantial character on the part of the promisee; (2) the
promise induced such action or forbearance; and (3) injustice can be avoided only by
enforcement of the promise. McLellan v. Charly, 2008 WI App 126, ¶ 50, 313 Wis.2d 623,
758 N.W.2d 94 (citing Hoffman v. Red Owl Stores, Inc., 26 Wis.2d 683, 698, 133 N.W.2d
167 (1965)). Bach submits that one set of managers promised to follow the law. Years
later, another manager terminated her because that manager had a learning disability.
Such pleading fails under Twombly.
Because the proposed amendments are futile, the court turns to the original
complaint. As mentioned above, Bach concedes that her discrimination claims under
federal law and the Wisconsin Fair Employment Act are barred. In addition, the court has
discussed that the various policies cited by Bach do not overcome the presumption that
she was an employee at will and Bach conceded in her proposed amended complaint that
the original complaint did not state a plausible claim for relief for wrongful discharge under
Wisconsin law.
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Now, therefore,
IT IS ORDERED that Bach’s motion for extension of time is denied.
IT IS FURTHER ORDERED that Bach’s motion to amend the complaint is denied.
IT IS FURTHER ORDERED that defendants’ motion to dismiss is granted.
IT IS FURTHER ORDERED that this case is dismissed.
Dated at Milwaukee, Wisconsin, this 29th day of March, 2012.

BY THE COURT

/s/ C.N. Clevert, Jr.
C. N. CLEVERT, JR.
CHIEF U. S. DISTRICT JUDGE

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