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Sharon Kesselman v. Sanofi-Aventis U.S. LLC

March 30, 2012


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


Plaintiff Sharon Kesselman brings this action against her former employer, Defendant sanofi-aventis U.S. LLC ("Sanofi" or "the Company"), pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"),*fn1 and the Pennsylvania Human Relations Act ("PHRA"),*fn2 alleging that she was constructively discharged on the basis of her age. She also brings claims for non-payment of overtime wages pursuant to the Fair Labor Standards Act of 1938 ("FLSA"),*fn3 the Pennsylvania Minimum Wage Act of 1968 ("PWMA"),*fn4 and the Pennsylvania Wage Payment and Collection Law ("WPCL").*fn5 Before the Court is Sanofi's Motion for Summary Judgment as to all claims.


Kesselman was employed by prescription pharmaceutical company Sanofi and its predecessor entity, Sanofi-Synthelabo, Inc. ("Sanofi-Synthelabo"), from June 23, 2003 until January 21, 2008, first as a "Medical Center Specialist" and later as a "Specialty Sales Representative."*fn7 Sanofi was formed in 2004, as a result of Sanofi-Synthelabo's acquisition of Aventis Pharmaceuticals Inc. ("Aventis").*fn8 The Sanofi-Synthelabo and Aventis sales personnel in Philadelphia were merged into a single sales team; as part of that integration, Kesselman was transferred to a sales group supervised by District Sales Manager ("DSM") John Heslin in April 2005.*fn9 Sanofi sales representatives are supervised by DSMs, who are in turn supervised by Regional Sales Directors ("RSDs");*fn10 the RSD for the region including Kesselman's territory was Tim Reilly.*fn11

Sales representatives such as Kesselman are generally responsible for increasing sales in their territories by cultivating relationships with health care providers and practices, and supplying them with information about Sanofi products, in an effort to encourage physicians to verbally commit to prescribing the products.*fn12 Representatives are expected to use their product knowledge, clinical studies, and other approved aids to accomplish these goals.*fn13

Representatives travel to providers in their assigned territories making "sales calls" and organizing programs or meals for physicians where either a speaker or the representative herself provides product information.*fn14 Representatives are expected to make sales calls for a minimum of eight hours a day, and perform certain administrative tasks outside normal business hours.*fn15

For example, representatives are expected to maintain logs of their sales calls and submit post-call notes through the company's QUEST system. Representatives are expected to "create a business plan for their territories, successfully identify and understand sales trends by analyzing the sales data . . . and address any underlying issues."*fn16 Periodically, DSMs accompany their representatives on sales calls (a "ride-with") and review the reports prepared by these representatives regarding their sales call activity and analysis of territory sales data.*fn17 In connection with each ride-with, DSMs issue a Field Activity Report ("FAR") or Field Contact Report ("FCR") summarizing the day's activities, commenting on areas of success or where improvement is needed, and noting current sales trends in the representative's territory.

Following the integration of Sanofi-Synthelabo and Aventis, Kesselman became responsible for selling Lovenox, a legacy Aventis product, and Plavix, a Sanofi-Synthelabo product which she had been selling for two years.*fn18 Kesselman, who was over fifty years old at this time, had had a successful career in pharmaceutical sales for twenty years.*fn19 Her first two years with Sanofi-Synthelabo were uneventful, and her first eight or nine months as a member of Heslin's team were, by all parties' accounts, positive; she received a favorable 2005 Mid-Year review and a positive October 2005 FAR from Heslin commending her efforts to learn about Lovenox and her new territory.*fn20

Kesselman's employment problems appear to have started in January or February of 2006. On January 10, 2006, Heslin accompanied Kesselman on a scheduled lunch call to Dr. Moehler. On arrival, they learned that Dr. Moehler was in Europe, but they remained at the hospital and spoke to other staff.*fn21 Kesselman recorded this visit as a sales call on her log.*fn22

Heslin again accompanied Kesselman on February 8-9, 2006. The FAR completed by Heslin following this ride-with noted that "there has been a dramatic downturn in business over the last few months. . . . [which] may be directly due to the fact that your targeting list is not complete and accurate . . ." and requested that she update her business plan and targeting list immediately.*fn23 Kesselman also recorded a sales call to Dr. Nejman on February 9;*fn24 however, Dr. Nejman was not in that day.*fn25

Heslin discovered a number of discrepancies between Kesselman's sales-call logs and his own records of the January and February ride-with days, and met with Reilly and Kesselman on February 13 and 17 to discuss these records.*fn26 As a result of this meeting, Heslin issued Kesselman a Notice of Policy Violation,*fn27 and circulated Sanofi's "Sales Professionals Procedures and Expectations" policy to all representatives.*fn28

In July 2006, Heslin sent Kesselman a "Coaching Letter," reiterating the Company's expectations regarding call activity and recording of sales calls, and noting that she had not met these expectations during the first half of the year.*fn29 In response, Kesselman repeatedly voiced her opinion that Sanofi's sales call policy was unrealistic, and lodged a complaint with Human Resources, expressing her feeling that Heslin had unfairly singled her out for censure on this issue.*fn30

Subsequently, Kesselman received "Below" ratings on her 2005 Year-End Evaluation,*fn31 her 2006 Mid-Year Review,*fn32 and her 2006 Year-End Evaluation.*fn33 As a result of the low ratings, she received no increase in salary for those years.*fn34

Throughout 2006 and 2007, Heslin continued to note his dissatisfaction with Kesselman's grasp of clinical data, especially with regard to Lovenox,*fn35 her ability to analyze trends in her territory sales data, and her planning and execution of target sales calls.*fn36 Kesselman has acknowledged that Heslin "was definitely more data driven" than she was, and that he required similar data analysis from his other sales associates, but that she thought his data requests were unnecessary.*fn37 In February 2007, Heslin issued Plaintiff a second Coaching Letter, addressing her ongoing inability "to use clinical information in a selling situation."*fn38 In response, Kesselman protested that she had "clearly demonstrated that [she] perform[ed] [her] job duties very competently," that "sales is not an exact, objective science," and that Heslin's "micromanagement and harassment" of her was "disparate and unfair."*fn39

On August 20, 2007, with the review and approval of the Human Resources Department and RSD Reilly, Kesselman was placed on a Final Written Plan.*fn40 The Plan detailed the perceived deficiencies in Kesselman's performance in territory management and business acumen; sales call targeting, frequency and execution; and product knowledge. The Plan noted her supervisors' concern that there was a "big gap between the documented behavior and actions in the field and [her] perception of how [she was] doing."*fn41 It set out the Company's expectations for her improvement, and a detailed plan of action to address these, which included submitting a written business analysis every month, weekly and daily call plans and post-call analyses, and weekly activity reports noting key appointments.*fn42 It also required her to, inter alia, update her targeting list by the first of each month, develop a tracking tool to assist her in meeting her targets, and create an Account Map for each of her client institutions.*fn43 The Plan was designed to remain in place for sixty days, during which Kesselman's progress would be reviewed on a regular basis.*fn44 At the conclusion of the sixty-day period, the Plan could be lifted or extended based on Kesselman's progress or, if she showed no improvement, Kesselman could be terminated.*fn45 The Plan also provided that Kesselman would not be eligible to apply for other positions in the Company for twelve months, would automatically be assigned a "Below" rating for 2007, would not be eligible to earn a bonus for six months, and would not be eligible for an annual performance adjustment in pay or awards for performance in 2007.*fn46 As an alternative to working toward the expectations, the Plan provided an optional Performance Transition Pay Program.*fn47

Kesselman objected vehemently to her supervisors' characterization of her performance,*fn48 and to the expectations laid out in the Plan,*fn49 but agreed to work with it. By September, Heslin felt that Kesselman's performance had improved significantly in certain aspects; he noted these improvements in his September 5, 2007 FCR,*fn50 which Kesselman thought was both positive and negative.*fn51 Upon reviewing the September FCR, Reilly noted to Heslin and Mirra that Kesselman "[had] set the bar . . . she [had] demonstrated that she can do . . . time will tell her commitment."*fn52

On October 4, 2007, approximately fifteen days before the conclusion of the Final Written Plan, Kesselman took short term disability leave because she was suffering from severe vertigo.*fn53 Kesselman returned to work on December 3, 2007, but through a combination of accrued vacation days and annual company shut-down time over the holidays, worked only a few days between her return and her resignation.*fn54 She met with Heslin once following her return; during the meeting he informed her that, because there were approximately two weeks remaining on the Final Written Plan at the time Plaintiff took disability leave, the Plan would be extended for a number of weeks after her return.*fn55 On January 8, 2008, Kesselman submitted her letter of resignation.*fn56

On or about February 12, 2008, Kesselman filed a complaint with the Pennsylvania Human Relations Commission ("PHRC") and the Equal Employment Opportunity Commission ("EEOC"), alleging that she was subject to discrimination and harassment based upon her age, culminating in her constructive discharge. Kesselman initiated the action in this Court on November 13, 2009. On March 22, 2010, the EEOC issued a Right to Sue letter, and Kesselman filed the Amended Complaint on April 12, 2010. Defendant answered ...

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