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Lloyd Mcdonnaugh v. Teva Specialty Pharmaceuticals

August 31, 2011

LLOYD MCDONNAUGH
v.
TEVA SPECIALTY PHARMACEUTICALS, LLC



The opinion of the court was delivered by: Goldberg, J.

MEMORANDUM OPINION

Plaintiff, Lloyd McDonnaugh, has alleged that Defendant, Teva Specialty Pharmaceuticals, LLC ("TSP"), terminated his employment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et. seq. ("Title VII") and the Civil Rights Act of 1991, 42 U.S.C. §1981 ("§ 1981").*fn1 Plaintiffs basic contention is that his termination was motivated by his race, African American.

Before the Court is Defendant's Motion for Summary Judgment. Because Plaintiff has failed to adduce sufficient evidence to demonstrate: (1) a prima facie case of race discrimination; or (2) that his termination was pretextual, Defendant's motion will be granted.

I. FACTUAL & PROCEDURAL HISTORY*fn2

In 2006, Plaintiff became aware of a sales opportunity at TSP and applied for the position of Sales Representative. Prior to joining TSP, Plaintiff had six years experience in the pharmaceutical industry, including work at Merck and Wyeth. Plaintiff was interviewed by Regional Sales Manager, Randy Simmons, who is also African American, and was subsequently hired on August 21, 2006 for the position of Overlay Sales Representative. Simmons was initially his boss, but as explained below, Simmons was later promoted to a different position. According to Plaintiff, his job required that he call upon the higher level physicians within the industry in a variety of sales territories. (Def's State. Facts, ¶¶ 1-3; Pl.'s State. Facts, ¶¶ 4-7; McDonnaugh Depo., pp. 10-11, 16, 21, 25, 31, 39, 33.)

As a Sales Representative, Plaintiff was primarily responsible for marketing ProAir HFA, which is a short acting beta agonist (rescue inhaler) to be used when a patient has an asthma attack, as well as QVAR, an inhaled corticosteroid prescribed by physicians for the maintenance and treatment of asthma. TSP provided Plaintiff and the other Sales Representatives with sales training. (Def.'s State. Facts, ¶¶ 4-7; McDonnaugh Depo., p. 22.)

In 2007, TSP reconfigured the territories in the Philadelphia region and eliminated the Overlay Sales Representative position. Plaintiff was assigned to his own territory, Central Philadelphia, for which he was the sole representative, and he continued to report to Simmons. In this position, Plaintiff was required to develop relationships with physicians, listen to their needs and provide a fit for ProAir and QVAR within their practices. Plaintiff was also expected to call on pharmacists, using a slightly different sales pitch, to allow them to become familiar with TSP products and the benefits of prescribing them. (Def.'s State. Facts, ¶¶ 8-11; Pl.'s State. Facts, ¶ 15-16; McDonnaugh Depo., pp. 25-30.)

Plaintiff's performance was reviewed on a monthly and bi-annual basis. The monthy reviews were known as Field Contact Reviews ("FCRs"), which were completed after a manager accompanied Sales Representatives on sales calls. Each review rated Sales Representatives with a numerical rating of one to four.*fn3 Simmons was critical of Plaintiff's performance in the areas of selling style and territory management. In his first partial year review, although Plaintiff's physicians showed an increased market share, Plaintiff was criticized for his one-sided sales style, which included excessive dialogue without utilizing probing questions to discover the needs of each physician. Plaintiff received a "meets expectations" score or a "3" on the overall rating for the partial year 2006. In 2007, his first full year of employment, Plaintiff received a "mostly meets expectations" in every category or a "2," except for "Integrity and Ethical Conduct," in which he "m[et] expectations." (Doc. No. 13, Exs. E, F; Def.'s State. Facts ¶¶ 13-15; Pl.'s State. Facts, ¶ 40; McDonnaugh Depo., pp. 34-36, 42-45; Simmons Depo., pp. 21-22.)

Simmons was promoted in November 2007 and Jaylene Penrod, a Caucasian, took over his Regional Manager position. The ten sales representatives who had reported to Mr. Simmons continued to report to Penrod. Plaintiff was the only African American in this group. In March 2008, Penrod prepared her first FCR for Plaintiff, and she reported that Plaintiff did not have a concise and strong sales message, failed to use probing questions and used excessive one-sided dialogue. Furthermore, his sales results for QVAR during the first quarter were lower than the regional, area and national averages. For ProAir, his other product, his sales results were either the same or slightly below the regional, area and national averages. (Doc. No. 13, Ex. G; Def.'s State. Facts ¶¶ 18, 24, 27-29; Pl.'s State. Facts, ¶ 28); see McDonnaugh Depo., pp. 54-58, 77, 82-83, 96-97.)

After a ride-along with Plaintiff in June 2008, Penrod rated Plaintiff's selling skills as "below expectations." Two months later, after another ride-along, Plaintiff's selling skills rating remained "below expectations," and his territory analysis and planning rating decreased from "meets expectations" to "mostly meets expectations." Plaintiff's overall rating for his 2008 Mid-Year Review was "below" expectations and Penrod specifically indicated that his selling skills and territory management skills were "below" expectations. (Doc. No. 13, Exs. G, H.)

Penrod also arranged for Plaintiff to have ride-alongs with other TSP employees, including Matt Burke, Area Director and Penrod's Manager, and John Severoni, another TSP Sales Representative. According to Burke, Plaintiff's sales message was disjointed and disorganized. After their ride along, Burke met with Plaintiff for about 30 minutes to allow Plaintiff to practice his sales presentation. Burke suggested Plaintiff showed improvement during this period, and in his follow-up memorandum, he wrote, "Lloyd was very open to coaching, and his sales presentation did improve when he practices. On a scale of one to ten, he moved from a one to a four, a long way from being effective." Plaintiff testified that Severoni told him during their ride-along that Penrod was "critical of you . . . [s]he dosen't even know you that well." Severoni testified, however, that Plaintiff demonstrated "below par sales ability" and was "unprepared" on the day of their ride-along. (Doc. No. 13, Ex. G; Def.'s State. Facts, ¶¶ 56, 59-61; McDonnaugh Depo., pp. 75-78, 88-91; Severoni Depo., pp., 17-18.)

When Penrod prepared Plaintiff's October 2008 FCR, she recognized some improvement, with ratings of "mostly meeting expectations," rather than "below expectations." Plaintiff, however, was placed on a Performance Management Plan ("PMP") in November 2008, and was given 90 days to improve in certain specific areas, namely "administrative responsibilities, adherence to sampling policies and procedures, territory management and selling skills[.]" Under Defendant's policy, a 90-day PMP means that, "there will be ongoing evaluation at the end of the 90-day period, there will be an evaluation of overall progress."

Plaintiff understood that failure to improve in these critical areas could result in termination. (Doc. No. 13, Ex. I; Def's State. Facts, ¶¶ 62, 65, 67, 68; McDonnaugh Depo., pp. 143, 150-155, 168:2-23; Pl.'s State. Facts, ¶ 58.)

While on the PMP, Penrod conducted another ride-along with Plaintiff and completed another FCR in December 2008, in which she noted ongoing performance deficiencies. Specifically, Plaintiff was reported as being "below expectations" in selling skills and as "mostly meets expectations" in territory management. Plaintiff's last ride-along with Penrod occurred on a Friday in January 2009. During this ride-along, Plaintiff: (1) visited the offices of two physicians without an appointment, although both required an appointment; (2) attempted to visit a physician at an office where he no longer worked, (3) walked in the wrong door at another office, and (4) called upon three physicians who did not meet with representatives on Fridays. The problems that arose during this ride-along reflected the ongoing concerns in the area of territory management.*fn4 Penrod rated Plaintiff's performance in territory management and selling skills as "below expectations." (Doc. No. 13, Ex. G; McDonnaugh Depo., pp. 189-201; Pl.'s State. Facts, ¶¶ 122-26.)

After the January 2009 ride-along, Penrod and Burke terminated Plaintiff, effective January 23, 2009, 73 days into his 90-day PMP. Plaintiff had failed to improve his performance scores in the areas of selling skills and territory management, two of the four categories identified in his PMP. ...


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