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Dooley v. CIBA/Novartis-Morristown

January 26, 2009

CHARLES J. DOOLEY PLAINTIFF
v.
CIBA/NOVARTIS-MORRISTOWN, NOVARTIS PHARMACEUTICALS CORP. DEFENDANTS



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

Presently before the Court in this employment discrimination lawsuit is the Motion for Summary Judgment of Defendant Novartis Pharmaceuticals Corporation ("Novartis"). (Dkt. Entry 22.)*fn1 Claiming his retirement from Novartis in 2006 was due to a course of harassment motivated by age and disability discrimination, Plaintiff Charles J. Dooley filed a complaint in this Court asserting numerous causes of action, including violation of the Americans with Disabilities Act ("ADA"), the Age Discrimination in Employment Act ("ADEA"), and the Pennsylvania Human Relations Act ("PHRA"), as well as common law claims of wrongful discharge and intentional infliction of emotional distress. (Dkt. Entry 1.) Because the PHRA claim is untimely, and Plaintiff has failed to present competent evidence that the work environment was so riddled with age and disability bias as to make continued employment intolerable, and because his common law claims of wrongful discharge and intentional infliction of emotional distress fail as a matter of law, Defendant's Summary Judgment Motion will be granted.

I. BACKGROUND

Charles J. Dooley was employed by Novartis as a Sales Representative between November 1988 and January 2006.*fn2 (Complaint at ¶¶ 9, 31; Defendant's Statement of Undisputed Material Facts ("DSUMF"), Dkt. Entry 23, at ¶ 11.) Novartis researches, develops, and markets pharmaceutical products. (DSUMF, Dkt. Entry 23, at ¶ 1.) Plaintiff "was responsible for promoting cardiovascular products to primary care physicians, internists and cardiologists in the Scranton, Pennsylvania territory." (Id. at ¶ 13.)

"From 2001 until Plaintiff's retirement in early January 2006, the District Manager for Central Pennsylvania was Thomas Aniska." (Id. at ¶ 15.) Aniska's supervisor was the Regional Director of the Mid-Atlantic Region, which between 2001 and the spring of 2005 was Lisa Pilla, and from then until Plaintiff's retirement was Christopher Esposito. (Id. at ¶ 16.)

A Sales Representative promotes Novartis products and is "responsible for calling on physicians, hospitals, pharmacies and other health-related organizations or personnel within their assigned territories." (Id. at ¶ 2.) Representatives typically travel "from doctor's office to doctor's office in an effort to meet with physicians to discuss Novartis' products." (Id. at ¶ 3.) A typical physician call includes a face-to-face "two way discussion and request for business." (Plaintiff's Statement of Undisputed Material Facts ("PSUMF"), Dkt. Entry 35-2, at ¶ 4.) An ideal call should include "discussion of three Novartis products, as well as 'probes, questions, features, advantages, benefits, summaries and closes.'" (DSUMF, Dkt. Entry 23, at ¶ 5.) "[M]odel product presentations were often difficult" and Representatives were often forced to find creative ways to see physicians, including "bringing in treats, lunches, and samples." (Id. at ¶ 6; PSUMF, Dkt. Entry 35-2, at ¶ 5.)

Representatives also were expected to plan and host educational programs. All Representatives were required to host three programs per trimester, which required "retaining the speaker, scheduling the date and location for the program, and inviting and ensuring the attendance of as many physicians as possible." (DSUMF, Dkt. Entry 23, at ¶ 7; PSUMF, Dkt. Entry 35-2, at ¶ 7.) Similar to educational programs, Representatives were also expected to host five roundtable programs per trimester to speak with physicians about Novartis' products. (DSUMF, Dkt. Entry 23, at ¶ 8; Dooley Deposition ("Deposition"), Dkt. Entry 36-2, at 198.) Representatives were also required to participate in a continuing education program called "I-learn." (PSUMF, Dkt. Entry 35-2, at ¶ 10.)

Between 2001 and 2006, Aniska would periodically ride along with Plaintiff in the field to observe and/or participate in the sales calls with Plaintiff. (DSUMF, Dkt. Entry 23, at ¶ 17; Deposition, Dkt. Entry 36-2, at ¶ 40.) The primary purpose of the "ride-along" was to observe the Representative's performance and give feedback on what was done right and what could be improved in future physician calls. (Deposition, Dkt. Entry 36-2, at 40-41.)

A Representative's sales results were calculated by "tracking the number of prescriptions written for the pertinent Novartis products by physicians in the respective sales representative's particular territory." (DSUMF, Dkt. Entry 23, at ¶ 21.) "Plaintiff had a counterpart in his territory who was responsible for promoting the same products to the same physicians as Plaintiff, although they would not call on physicians at the same time." (Id. at ¶ 22.) Therefore, sales results in a particular area were a "team effort," and a Representative's counterpart would have identical sales results. (PSUMF, Dkt. Entry 35-2, at ¶ 20; Deposition, Dkt. Entry 36-2, at 80-81.)

Although Plaintiff's sales were generally high, his supervisors were concerned with his planning, territory management, and administrative skills. In 1998, his former supervisor, Thomas Scherer, felt that Plaintiff's planning and territory management were items of concern. (Deposition, Dkt. Entry 36-2, at 99-100; Scherer Affidavit, Dkt. Entry 36-24, at ¶¶ 4, 12.) As a result of below expectation performance in the later part of 1997 and the beginning of 1998, Scherer placed Plaintiff on a Territory Action/Tracking Plan in April of 1998. (1998 Tracking Plan, Dkt. Entry 25-7.) Although Scherer's affidavit purports that taking Plaintiff's "year in total he always did a good job," Plaintiff's Business and Development Report for September 1998 stated that Plaintiff needed to individualize his sales presentations and increase his call average. (Scherer Affidavit, Dkt. Entry 36-24, at ¶ 17; Business & Development Report ("BDR"), Sept. 2, 1998, Dkt. Entry 25-7.) Additionally, Scherer noted that the customers "don't feel a 'sense of urgency'" in Plaintiff's promotion of Diovan, and recommended that Plaintiff forget about rumors and issues he had no control over and concentrate on sales. (BDR, Sept. 2, 1998, Dkt. Entry 25-7.) In a September 22, 1998, memo, Scherer reiterated the importance of planning and territory management, mentioning that Plaintiff was driving too much, seeing too few physicians, and should become more comfortable working with word processing and email applications. (Id.)

Plaintiff's next District Manager, Dale Snyder, made similar observations, noting the need to develop a greater "sense of urgency," develop a "better record-keeping system," improve call average, and develop a more focused pre-call plan. (1999 Performance Management Process, Dkt. Entry 25-6, at 3.) Although Plaintiff met expectations in most areas of his evaluation, Snyder noted the need to "work towards achieving 9 calls per day," to "take the initiative to use all available resources to create face time with physicians," and to enhance his coping with change and corporate decisions. (Id. at 5, 8.)

Plaintiff was on a medical leave of absence from April, 2000 until November, 2000 to have surgery for stomach cancer. (DSUMF, Dkt Entry 23, at ¶ 31.) Although reporting problems with stamina, Plaintiff returned to work without any medical restrictions.

(Deposition, Dkt. Entry 36-2, at 15, 18.) In part, Plaintiff stated, It wasn't so much that I couldn't do other things. It was a matter that . . . I came back as soon as I could put in a full day's work, but when I came home from work, I was totally exhausted. So my choice was either to take a nap right after work so that I could do my paperwork late at night or else -- or else eat dinner and do my paperwork and find myself almost falling asleep while I was doing it. (Id. at 16.) Plaintiff reported these symptoms as lasting a few months, into early 2001, after which he gradually progressed to the point where he was not so exhausted that he could not do his paperwork. (Id.)

Because of Plaintiff's short-term disability leave, a Year End Assessment of 2000 was not completed. Plaintiff's mid-year review, however, revealed that Plaintiff was experiencing many of the same challenges as he had experienced in the past.*fn3

In 2001, Aniska was promoted to District Manager and became Plaintiff's immediate supervisor. At this time, Plaintiff was 53 years old. (PSUMF, Dkt. Entry 35-2, at ¶ 37.) Plaintiff's 2001 Performance Review indicated that he exceeded expectations regarding sales, was noted as working well with his counterparts, having "excellent product knowledge and selling skills," and a "good work ethic." Despite this favorable performance, the Review also indicated that Plaintiff maintained the same developmental needs, including the need to be "more receptive to change," to increase his calls per day, to "[b]e creative and innovative to get physicians in a more informal atmosphere," to "present three products on all calls," to "stay on top of admin.," and to become "[m]ore familiar with [the] computer." (2001 Annual Performance Review, Dkt. Entry 25-6, at 4, 6.)

Although Plaintiff's sales remained above the national, regional, and district averages, many of these purported deficiencies were again reported in 2002. (2002 Annual Performance Review, Dkt. Entry 25-4, at 15.) Plaintiff's calls per day was 1.5 doctors below the district average, and Aniska's notes indicated a need to adapt to change, increase call average, stay on top of administrative activities, and become more familiar with the computer. (Id. at 19.) His 2002 Annual Performance Review rated his skills in Knowledge Expertise and Selling Process as exceeding expectations, but his Territory Management and Results Focus as only partially meeting expectations. (Id. at 18.)

Around this time, Plaintiff began noticing a strained relationship with Aniska. On a very hot day, in the summer of 2002 or 2003, Plaintiff and Aniska were eating lunch when Plaintiff commented, "I don't think I have the stamina that I used to," to which Aniska replied, "what do you want, slack." (Deposition, Dkt. Entry 36-2, at 18.) Additionally, between the time Aniska became Plaintiff's supervisor and January 3, 2006, Plaintiff asserts that Aniska stated to Plaintiff on numerous occasions that perhaps I ought to retire, perhaps I ought to quit, perhaps I ought to get into another division, perhaps I ought to consider part-time pharmaceutical work, perhaps I ought to change companies . . . I should retire or leave before I realize that I couldn't do it . . . . Perhaps I ought to leave before I become embarrassed. Perhaps the job was getting too much for me. (Id. at 9.) Although Plaintiff remembers these comments, he can not remember any circumstances under which they were made, recall the dates of the comments, or provide the names of witnesses to these comments, other than to remember that the first statement -- about whether he could "do the job" -- occurred in 2001 when he and Aniska first met. (Affidavit, Dkt. Entry 36-23, at ¶ 73.)

In early 2003, Aniska sent Plaintiff a letter discussing his concern for Plaintiff's "lack of familiarity or willingness to adhere to many of the [the company's] administrative duties." (Aniska Letter, Dkt. Entry 25-11, at 1.) Aniska listed administrative duties that Plaintiff was failing to complete, reiterated the need for more roundtables and lunches, identified areas of "immediate concern," and enclosed examples of Plaintiff's most recent expense report errors and a copy of the company's work expectations of Plaintiff. (Id.)

In a March 24, 2003, e-mail from Aniska to Plaintiff, Aniska noted that on their most recent ride-along on March 20, 2003, Plaintiff traveled 135 miles to see "2 PA's and 1 tier 3 physician," which was not acceptable. (Mar. 24, 2003 Email, Dkt. Entry 25-11.) Plaintiff contends that he went out of his way that day to go "to the satellite office of this doctor to catch the doctor where he had more free time to speak to them. The doctor was supposed to be there but wasn't when they arrived." (PSUMF, Dkt. Entry 35-2, at ¶ 44.)

In 2003, Plaintiff's sales were above the national but below the regional average. (2003 Annual Performance Review, Dkt. Entry 25-5, at 2.) His share change was "below regional and district avg. for all priority products," as a result of which his ranking stayed flat. (Id.) Although Plaintiff's share change was below the regional and district average, he still maintained an "exceeded expectations" rating in the area of sales goals. (Id. at 6.) Aniska noted that:

Your ranking of 3 on the objectives portion of these [sic] review is due mostly to your national rank. As you will read below, there are numerous areas of improvement under call focus, customer focus and personal development.

These are all measured against both the district averages and the averages of your counterpart. (Id. at 3.) Aniska's evaluation went on to list areas for improvement, including the need to increase his 7.4 calls per day to at least ten. (Id. at 3-4.)

Plaintiff appeared aware of the areas in which he was struggling, and in his 2003 self-appraisal, he describes his selling process as: "selling skills adequate: closing skills need work." (Id. at 9.) He also noted the need to work on his computer skills, observing that he was "not by nature a computer person" but eventually got it after a few tries. (Id. at 11.) Aniska noted that Plaintiff's commitment was below average, noting that he performed according to his own "expectations and what may have been the norm in the past," as opposed to current Novartis values, behaviors and expectations. (Id. at 9.)

On January 1, 2004, the Regional Director, Lisa Pilla, sent an e-mail to Plaintiff and Aniska regarding a recent ride-along with Plaintiff. (Jan. 1, 2004 Email, Dkt. Entry 25-9.) Pilla noted that Plaintiff's demonstrated strengths included: 1) his knowledge of prescribing patterns and social styles of physicians; 2) his awareness of targets' prescribing potential and recognition of who to target to achieve share growth; and 3) his response to coaching and incorporation of feedback. (Id.) Areas that Pilla noted could be improved included territory management and selling process. (Id.) Pilla noted that Plaintiff needed to ensure that his daily routing stayed "current with physicians' office hours/schedules" based, in part, on visiting three physicians who were not in, and work on creating call continuity, purposefully probing, using visuals, and discussing multiple products on calls. (Id.)

On February 2, 2004, Plaintiff was placed on a Territory Coaching Plan. (First Coaching Plan, Dkt. Entry 25-7.) The behaviors to be addressed included increasing call frequency; meeting target call attainment; meeting call per day expectations; improving call planning and routing; creating an action plan; increasing lunches, programs, and roundtables; creating accurate and timely activity plans; recording call notes; timely submitting administrative material; creating call continuity; and incorporating at least two probes per call. (Id. at 2-10.) Aniska also noted the completion of only one of nine I-learn credits, which was unacceptable. (Id. at 10.) Plaintiff admitted he was not timely completing administrative duties, but contended that other Sales Representatives also failed to submit reports on time.*fn4

During the course of Plaintiff's Territory Coaching Plan, Aniska evaluated Plaintiff numerous times. Early after the plan began, Aniska noted that he saw positive changes in Plaintiff's purposeful probing, directness in closing, and call continuity. (BDR, Feb. 24, 2004, Dkt. Entry 25-13, at 1.) In March, Aniska noted that Plaintiff's attempts to improve were commendable, but he had only "touched the tip of the iceberg." (Field Observations, Dkt. Entry 25-8, at 2.) In contrast, an e-mail dated March 2, 2004, revealed that Plaintiff had not submitted his weekly reports, special reports, or ref tracker. (Aniska Email, Mar. 2, 2004, Dkt. Entry 25-11.)

At around the same time, Plaintiff participated in a required ride-along with another Sales Representative, Amy Fink. Plaintiff observed that her day was "very well planned geographically," that they "did no excess driving;" and that Amy seemed to get there at the "best times," allowing her time to chat with the doctors. (Ride-Along Letter, Dkt. Entry 25-4, at 1.) At the end of the letter, Plaintiff noted that Amy had made nine calls by 2:00 p.m., commenting that "[i]t must be nice to be young and strong." (Id.) In response, Aniska noted that Amy's achievements were what was expected. Regarding Plaintiff's comment that Amy was "young and strong," Aniska stated that Amy's performance had "nothing to do with being young and strong," but "everything to do with being committed." (Aniska Email, Mar. 3, 2004, Dkt. Entry 25-4.)

Despite what appeared to be early progress, two weeks later Aniska noted that Plaintiff was again "struggling to see 10 doctors per day" and needed to "be more convincing and confident" in his message to physicians. (BDR, Mar. 22, 2004, Dkt. Entry 25-13, at 2.) Plaintiff's administrative responsibilities continued to be below par and Aniska had to remind him to make sure he had the most recent data downloaded to his computer, since they had been working "with 2 week old data." (Id.)

By the end of April, it appeared that any progress made by Plaintiff had been lost. Aniska noted a "lack of progress toward [Plaintiff's] coaching plan,"and that Plaintiff was still struggling with "'territory management [sic], lack of access and relationship, lack of ref activity and poor administrative activity." (BDR, Apr. 20, 2004, Dkt. Entry 25-13, at 1.) It was Aniska's opinion that Plaintiff's coaching plan goals were not being met and that "lack of implementing the basic fundamentals (preparation, execution and administrative responsibility) set [Plaintiff] up for failure." (Id.) Aniska did acknowledge that he received a note from Plaintiff's physician stating that health issues had precluded him from his coaching plan reporting for a two-week period, but the doctor had also stated "that those issues have been resolved" and Plaintiff had "no restrictions as to job expectations." (Id. at 3.) Aniska's Field Observations noted:

[I]n addition to our most important goal of sales, [administrative duties are] equally important to the success of our organization. I don't think you understand nor care of its importance. Numerous times over this coaching plan, we have addressed such things as NEC, reporting correctly and on time, email and voicemail, time off territory etc. This has become a tremendous source of my frustration. How can 11 people report correctly and with no problems and my time is spent fixing your errors while neglecting my own responsibility. (Field Observations, April, Dkt. Entry 25-8, at 3.)

Plaintiff's coaching plan ended on May 3, 2004, and was discussed with Plaintiff on May 5, 2004. (Final Evaluation, Dkt. Entry 25-8.) Although the assessment showed improvement in some areas, it revealed that Plaintiff's performance was still below expectations in a number of categories.*fn5 (Id.) Plaintiff disagreed with many aspects of his assessment, noting that "[t]here is no representative [that] would meet all of the requisite components of a call when being held to this high of a standard." (PSUMF, Dkt. Entry 35-2, at ¶ 58.)

After Plaintiff's initial coaching plan Aniska continued to ride along with Plaintiff. Aniska noted that Plaintiff still needed to "focus on preparation, execution and administrative responsibilities." (BDR, May 26, 2004, Dkt. Entry 25-13, at 2.) In June of 2004, Aniska noted:

You are still doing excessive driving. We drove from town to town to find doctors. We were working in the Mid Valley [which] has a high concentration of tier 1 physicians. We made one call, waited and then were turned away from an appointment, then traveled out of the Mid Valley to Scranton to see Dr. Remick. We were shut out there as well. We waited 10 minutes in his parking lot and left to pick up your lunch. When we got to the lunch the physician called to say he was on his way. The nurse told him you were waiting. He didn't know who you were. He called back 5 minutes later and cancelled lunch. The nurse said she would call you tomorrow to come back. By 2 o'clock the next day we still had not received the call.

I asked you to submit 3 reports that evening. 1. Our monthly ROI report that is due the 25th of each month. It was June 2nd and I still hadn't received it. 2. A top ten list of physicians to implement your new plan for call continuity. It was supposed to be to me by 5/28/04. 3. Finally, I asked that you [sic] a list of your targets by town so I could assist in improving routing. I recieved [sic] none of the reports by email. You did present your target list names on a hand written paper but used targets for T-1-04. This is an example of your disregard for ...


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