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Becky S. Palamides v. Boehringer Ingelheim Pharmaceuticals

March 18, 2011


The opinion of the court was delivered by: Conti, District Judge.



Pending before this court is the motion for summary judgment filed by defendant Boehringer Ingelheim Phamaceuticals, Inc. ("BIPI") with respect to the claims asserted by plaintiff Becky S. Palamides ("plaintiff") under the Age Discrimination in Employment Act, as amended, 29 U.S.C. §§ 261 et. seq. ("ADEA") and the Pennsylvania Human Relations Act, 43 PA. CONS. STAT. §§ 951 et. seq. ("PHRA"). Plaintiff filed an Equal Employment Opportunity Commission ("EEOC") charge on June 19, 2006 for age discrimination based on her termination from BIPI and cross-filed that charge with the Pennsylvania Human Relations Commission. (Pl.‟s Dep. Ex. 42.)*fn1

II.Factual Background

BIPI manufactures and sells pharmaceuticals throughout the United States. (P.S.F. ¶ 1.)*fn2

BIPI‟s sales force is divided into regions. Each region is divided into districts and each district is divided into territories. (Id.) Plaintiff was interviewed by three district managers ("DMs"), Eugene Simeone, ("Simeone") Julie Rebel, ("Ms. Rebel") and Rob Vincent ("Vincent") as part of a mass hiring in July 2003 (P.S.F. ¶ 11.) On July 21, 2003, plaintiff was hired by BIPI as a pharmaceutical sales representative. (C.S.F. ¶ 1.)*fn3 At the time plaintiff was hired, she was forty-five years of age; her birthdate is May 9, 1958. (Id. ¶ 2.)

A.Plaintiff's work assignments and supervisors

All BIPI sales representatives are subject to the BIPI Sales Employee Guide ("Guide"), which sets forth expectations about the performance of sales representatives. (P.S.F. ¶ 14.) The Guide provides that, "[n]ewly hired sales representatives are required to locate their residences inside the geographical boundaries of their territory, unless exempted by their Regional Director." (Id. ¶ 15.) Plaintiff was assigned to work in the Wheeling, West Virginia/Washington, Pennsylvania territory when she was first hired by BIPI. (C.S.F. ¶ 7.) Plaintiff reported to Ms. Rebel, her DM, when she was first hired by BIPI. (Id. ¶ 8.) Plaintiff resided in McMurray, Pennsylvania at the time she was hired. (P.S.F. ¶ 18.) Plaintiff alleges that she made a request to Simeone to be assigned to the Pittsburgh Southwest Territory in the Pittsburgh District where she resided when she was first hired. (Id. ¶ 19.) McMurray, Pennsylvania is located within the geographical boundaries of the Pittsburgh Southwest Territory, where she requested to be assigned because there was an opening in that territory. (Id. ¶ 18.) The Pittsburgh District is part of BIPI‟s Region 17. (Id. ¶ 1.) The Pittsburgh District is comprised of three territories; Pittsburgh Southwest, Pittsburgh Southeast and Pittsburgh City.

(Id. ¶ 2.) Simeone indicated, however, that assignment to the Pittsburgh District was not an option. (Id. ¶ 19.)

Chris Kyle ("Kyle") was the Region 17 human resources manager between January 1, 2003 and January 1, 2006. (Id. ¶ 4.) Kyle testified that an assigned territory could be changed at any time, for any business need. (Pl.‟s App. (ECF No. 66), Ex. 7 ("Kyle Dep.") at 97-98.) Plaintiff was still required to work in the Wheeling, West Virginia territory even though she lived outside of the territory and despite the requirement in the Guide that sales representatives reside in their assigned territories.

Vincent subsequently became plaintiff‟s DM. (C.S.F. ¶ 9.) Vincent and Floyd asked plaintiff to take a newly created position in the Pittsburgh Southwest Territory for several reasons. (Id. ¶ 11.) Vincent believed that transferring plaintiff to the Pittsburgh Southwest Territory would reduce the amount of her travel time. (Id.) On January 18, 2005, plaintiff was transferred to the Pittsburgh Southwest Territory. (Id. ¶ 10.) Plaintiff transferred in order to take a new position that was created specifically to sell a new product that BIPI was expecting to be approved for sale by the Federal Drug Administration ("FDA"). (Id. ¶ 12.) In this newly created position in the Pittsburgh Southwest Territory, plaintiff reported to Simeone as her DM. (Id. ¶ 13.) Plaintiff was hesitant about accepting this new position because she had learned from another employee that Simeone had made ageist comments in the past. (Pl.‟s App., Ex. 4 ("Pala. Dep.") at 86, 253.)

During the course of plaintiff‟s employment in the Pittsburgh Southwest Territory, Simeone appointed plaintiff to the position of HealthAmerica coordinator. (C.S.F. ¶ 14.) In late March 2005, BIPI learned that the product for which plaintiff‟s position was created was not approved for sale by the FDA. (Id. ¶ 15.) Thus, the territory could no longer support her position and it was eliminated. (Id.) BIPI offered plaintiff the choice of transferring either to Greensburg, Pennsylvania or to the Pittsburgh City Territory. (Id.) Plaintiff chose to transfer to Pittsburgh City Territory, where she would continue to report to Simeone. (Id.) This transfer was plaintiff‟s fourth transfer within the company in two years. No other employee was transferred as often as plaintiff. (Pl.‟s App., Ex. 10 ("Sim. Dep.") at 149.)

B.Plaintiff's evaluations

"Sales representatives traveled with their DMs on a regular basis, at which time, both positive and negative performance issues were documented in Field Contact Reports." (P.S.F. ¶ 31.) Sales representatives also met with their DMs twice per year and received written performance reviews. (Id. ¶ 32.) Plaintiff was assigned to a "geoteam" consisting of three or four sales representatives who were accountable for meeting certain targets and goals. (Id. ¶ 28.) Plaintiff‟s geoteam "consistently met or exceeded their sales goals." (Id. ¶ 29.) In 2005, plaintiff was the lead representative for the drugs Micardi and Spiriva and her geoteam reported significant gains in sales for these two drugs. (Id.) As of October 2005, plaintiff‟s geoteam was ranked fifth out of twenty-two teams and achieved a goal attainment of between 94% and 100% for drugs it marketed. (Id. ¶ 30.) Plaintiff did not receive any negative feedback in either her field contact reports or performance reviews before November 18, 2005. (Id. ¶ 34.) She was never warned, reprimanded or disciplined in any manner prior to November 18, 2005. (Id.)

Ms. Rebel nominated plaintiff for a Golden Achievement Award in 2004. (Id. ¶ 35.) Another DM, William Martin, nominated plaintiff for a Golden Achievement Award in 2005. (Id. ¶ 36.) "Simeone did not report any problems or deficiencies in plaintiff‟s performance or her relationships with her geoteam as of October 19, 2005." (Id. ¶ 37.)

C.UPMC Update

The UPMC Update ("Update") is an annual seminar held for companies and persons in the medical field. (C.S.F. ¶ 48.) Pharmaceutical companies set up booths and take advantage of the opportunity to network with physicians and potential customers. (Id.) An Update took place on November 3 and 4, 2005, at the David L. Lawrence Convention Center in Pittsburgh, Pennsylvania. (Id.)

Plaintiff was tasked with coordinating BIPI‟s participation in the event and, in particular, scheduling coverage of BIPI‟s booth by sales representatives throughout that Update. (Id. ¶ 49.) Plaintiff did not schedule herself to attend that Update. (Id. ¶ 52.) If any sales representative were unable to attend the conference, plaintiff was expected to attend in their place. (P.S.F. ¶ 61.)

D.Plaintiff's termination

The National Standards requires a sales representative to be physically located within his or her sales territory between the hours of 8:00 a.m. and 5:00 p.m., absent approval from the employee‟s DM. (C.S.F. ¶ 24.) On September 16, 2005, Simeone observed plaintiff at approximately 10:15 a.m. at her storage unit, which was located outside of her assigned sales territory. (Id. ¶ 26.) Plaintiff admits that Simeone told her that she was outside of her sales territory and needed to relocate her storage unit within her sales territory. (Id. ¶¶ 26-27.)*fn4

In the fall of 2005, a number of plaintiff‟s co-workers began raising concerns to Simeone with respect to plaintiff‟s job performance. (Id. ¶ 25.) Plaintiff was aware of some of the concerns raised by her co-workers. (Id.) Plaintiff was aware that some co-workers raised concerns about her leaving the territory early and failing to attend team meetings. (Id.) Plaintiff did not know prior to November 16, 2005, that some co-workers raised more serious concerns about her job performance. (Id.) Plaintiff was unaware that her co-workers accused her of recording calls she did not make. (Id.)

Simeone asserts that he spoke with Ron Rebel ("Rebel") with respect to plaintiff‟s job performance and that Rebel informed him plaintiff said that if she did not leave her territory by 2:30 p.m. or 3:00 p.m., she would not get home until approximately 7:00 p.m. (Id. ¶ 30.) Plaintiff denies the discussion with Rebel ever took place. (Id.) Simeone asserts that Rebel raised concerns that plaintiff had not made a number of the physician calls that she reported; and when Rebel confronted her about these allegations, she denied any misconduct. (Id. ¶ 31.) Plaintiff disputes these facts. (Id.) Simeone began an investigation into plaintiff‟s call records and consulted with Kyle during the investigation. (Id. ¶ 33.)

BIPI uses software called VISTA to track and manage the sales activities of its sales representatives. (Id. ¶ 17.) Plaintiff was trained on the use of VISTA and knew how to use the software. (Id.) Plaintiff understood that she was expected to record physician sales contacts into VISTA on a daily basis. (Id. ¶ 18.) According to the National Standards for Field Sales, and BIPI policy, a face-to-face physician contact is defined as a face-to-face call with a practicing physician during which there is a discussion or dissemination of product information. (Id. ¶ 19.) The Guide provides that falsifying daily physician contacts is unacceptable and will result in discipline, up to and including termination. (Id. ¶ 21.) BIPI Corporate Policy and its Business Conduct and Ethics Policy likewise provides that falsification of reports and falsifying daily physician contacts is unacceptable conduct and will result in dismissal. (Id. ¶ 23.)

During the course of the investigation of plaintiff‟s call records, Simeone observed, among other things, that plaintiff recorded a face-to-face physician call with Dr. Diana Lemley ("Dr. Lemley") on November 3, 2005. (Id. ¶ 34.) Simeone alleges that the November 3, 2005 call was suspicious because he knew Dr. Lemley from calling her when he was a sales representative with BIPI. (Id. ¶ 35.) Simeone recalled that Dr. Lemley frequently attended the Update, which had taken place on November 3 and 4, 2005. (Id.)

Simeone asserts that he called Dr. Lemley‟s office to determine if Dr. Lemley was in her office on November 3, 2005. (Id. ¶ 36.) Simeone learned that Dr. Lemley was at the Update on November 3 and 4, 2005, and was out of the office on both days. (Id.) Simeone requested a letter from Dr. Lemley‟s office confirming that she was out of the office on November 3, 2005 and they sent him a letter confirming this fact. (Id.)

On November 16, 2005, Simeone and Floyd held a meeting with plaintiff in order to gather information on issues concerning plaintiff‟s job performance, particularly her call records. (Id. ¶ 37.) Plaintiff did not know the purpose of the meeting beforehand. (P.S.F. ¶ 78.) Simeone and Floyd discussed several issues with plaintiff during the November 16, 2005 meeting and questioned her about the November 3, 2005 call with Dr. Lemley. (C.S.F. ¶ 38.) They asked if she had made the call and she replied that she did. (Id.)

Simeone questioned plaintiff about whether she had lunch with Dr. Lemley on November 3, 2005. (Id. ¶ 81.) Plaintiff informed Simeone that she could not remember whether she took Dr. Lemley to lunch on the day in question and would need to check her receipts. (Id.) Simeone asserts that plaintiff explained she had lunch with Dr. Lemley on November 3, 2005. (C.S.F. ¶ 38.) Plaintiff denies telling either Simeone or Floyd that she had lunch with Dr. Lemley on November 3, 2005. (C.S.F. ¶ 38.)*fn5

Simeone and Kyle assert that plaintiff stated she might have stopped by Dr. Lemley‟s office, talked with her staff, and left some literature, even if she did not speak with Dr. Lemley.

(Id. ¶ 40.) Kyle stated that plaintiff said "you could find things on everybody if you really look." (Id.) Plaintiff denies making this statement. (Id.)

Plaintiff maintained during the discussion that if she recorded a call in VISTA for November 3, 2005, then she had a meeting with Dr. Lemley on that date. (Id. ¶ 41.) Plaintiff felt "blindsided" by the meeting and was not given an opportunity to review her appointment book or expense records. (P.S.F. ¶ 85.) Plaintiff believed she responded adequately to all issues raised in the meeting. (Id.)

Simeone, Floyd and Kyle assert that they terminated plaintiff on November 18, 2005, because she could not adequately explain how she made a face-to-face call on November 3, 2005 with Dr. Lemley. (C.S.F. ¶ 45.) Plaintiff responds that she did not understand she was being terminated for falsifying her November 3, 2005 call to Dr. Lemley. (P.S.F. ¶ 87.) Plaintiff asserts she was terminated at the age of forty-seven solely because of the single call to Dr. Lemley she reported. (Id. ¶ 88.)

Simeone testified that he would not have terminated plaintiff and would have further investigated, if either plaintiff or Dr. Lemley had told him that they met at the November 3, 2005 Update. (Id. ¶ 89.) Simeone testified that he did not ask plaintiff whether she attended the Update because it "wasn‟t even a point in his mind."(Id. ¶ 90.) Simeone did not question any other sales representatives to determine whether plaintiff actually attended that Update. (Id.)

Plaintiff obtained an affidavit from Dr. Lemley. (Id. ΒΆ 93.) Dr. Lemley considered plaintiff to be a conscientious and enthusiastic sales representative. ...

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