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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 in a timely fashion, and after discovery, filed the instant Motion for Summary Judgment within the time permitted by the Court.


Upon motion of a party, summary judgment is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."*fn57 A party moving for summary judgment has the initial burden of supporting its motion by reference to admissible evidence showing the absence of a genuine dispute of a material fact or showing that there is insufficient admissible evidence to support the fact.*fn58 Once this burden has been met, "the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument."*fn59

Summary judgment should be granted only if the moving party persuades the district court that "there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party."*fn60 A fact is "material" if it could affect the outcome of the suit, given the applicable substantive law.*fn61 A dispute about a material fact is "genuine" if the evidence presented "is such that a reasonable jury could return a verdict for the nonmoving party."*fn62

In evaluating a summary judgment motion, a court "must view the facts in the light most favorable to the non-moving party," and make every reasonable inference in that party's favor.*fn63

Further, a court may not weigh the evidence or make credibility determinations.*fn64 Nevertheless, the party opposing summary judgment must support each essential element of his or her opposition with concrete evidence in the record.*fn65 "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."*fn66


a.Plaintiff's Overtime Claim

The Fair Labor Standards Act and the Pennsylvania Minimum Wage Act mandate that employees be paid overtime wages above their standard hourly rate for every hour over forty worked per week, unless the employee falls within a statutorily exempt category. The parties do not appear to dispute that Kesselman often worked more than forty hours per week; however, Sanofi argues that, as a Specialty Sales Representative, Kesselman was not entitled to overtime pay pursuant to the "administrative employee" exemptions to the FLSA and the PMWA.*fn67

FLSA regulations define an "employee employed in a bona fide administrative capacity" as any employee:

(1) Compensated on a salary or fee basis at a rate of not less than $455 per week ... exclusive of board, lodging or other facilities;

(2) Whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and

(3) Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.*fn68

Similarly, the PMWA's administrative exemption "applies to employees whose (1) salaried compensation is at least $250 per week, exclusive of board, lodging or other facilities;

(2) primary duty consists of the performance of office or non-manual work directly related to management policies or general operation of his employer or the customers of the employer; and

(3) primary duty requir[es] the exercise of discretion and independent judgment."*fn69

The Third Circuit has recently found pharmaceutical sales representatives exempt as administrative employees under the FLSA and the PMWA.*fn70 In Smith v. Johnson & Johnson, the Court held a sales representative was engaged in work directly related to the management or general business operations of the employer because the "position required her to form a strategic plan designed to maximize sales in her territory," which "involved a high level of planning and foresight."*fn71 Because Smith "executed nearly all of her duties without direct oversight" and considered herself "the manager of her own business who could run her own territory as she saw fit[,]" the Court concluded that Smith was subject to the administrative employee exemption under the FLSA.*fn72

In Baum v. AstraZeneca, the Court, relying on Smith, held that plaintiff's work related to her employer's general operation because she marketed and advertised its pharmaceutical products.*fn73 The plaintiff also had "significant discretion in how she would approach physicians, whether it be through access meals, peer-to-peer meetings, or other means," "spent the majority of her time in the field, unsupervised," "decided how much time she would spend with a given physician . . . . [and] whether she would use a detail aid," such that her "day-to-day activities involved making numerous independent judgments on how best to promote [her employer's] products."*fn74 The Third Circuit therefore held that plaintiff was subject to the administrative employee exception to the PMWA.

Having carefully considered the undisputed and stipulated facts of this case, Kesselman's deposition testimony, and record documents reflecting Kesselman's own assessment of her job responsibilities and accomplishments, the Court finds Smith and Baum controlling. Like the plaintiffs in Smith and Baum, Kesselman spent most of her working hours unsupervised*fn75 and was responsible for developing her own target list of physicians, daily and monthly sales call itineraries, and a business plan for her territory based on her extensive knowledge of clients and sales data. Although, like Smith and Baum, she often worked from company-approved materials and was expected to convey certain product information during calls, she otherwise had discretion as to how to organize and conduct the calls. In general, she considered herself the "boss" of her territory.*fn76

These activities, which closely parallel the activities of Smith and Baum, "reflect [her] ability to develop strategies; to approach, communicate, and cultivate relationships with physicians; and to operate without constant supervision in the field."*fn77 Furthermore, they "are consistent with relevant definitions of exempt administrative work because they affect Defendant's business operations to a substantial degree, . . . and involve sales and promotional work on behalf of Defendant that reflect the exercise of discretion and independent judgment with respect to matters of significance . . . ."*fn78

Kesselman argues her situation is distinguishable, because Heslin's heightened oversight of her activities and the restrictions and demands placed on her as a result of the Final Written Plan issued in August 2007 robbed her of the autonomy, discretion, and independent judgment required to qualify as an administrative employee. The Court disagrees. The Final Written Plan required Kesselman to submit a written business analysis monthly, update her targeting list by the first of each month, submit weekly call and daily call plans and post-call analyses, and submit weekly activity reports noting key appointments.*fn79 With the exception of increased reporting to and oversight by her managers, these activities and duties did not alter Kesselman's general responsibilities, and were similar to Heslin's expectations of other representatives on his team, and the activities of the plaintiffs in Smith and Baum.*fn80 While it is true that Kesselman was subject to greater scrutiny in her last eighteen months at Sanofi, especially under the Final Written Plan, the increased demands and restrictions did not change the fundamental nature or essential components of her job. Consequently, the Court holds that Kesselman was an administrative employee and, as such, is not entitled to overtime pay under the FLSA or the PMWA.*fn81

b.Plaintiff's Age Discrimination Claim

The ADEA prohibits an employer from discharging or discriminating against any individual over the age of forty "because of such individual's age."*fn82 The Supreme Court has stated that "the ADEA's text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor."*fn83 Instead, to establish a claim under the ADEA, a "plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the 'but-for' cause of the challenged employer decision."*fn84 In other words, "[t]he burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in the decision."*fn85 In so holding, the Supreme Court noted that it "has not definitively decided whether the evidentiary framework of McDonnell Douglas Corp. v. Green . . . utilized in Title VII cases is appropriate in the ADEA context."*fn86 However, the Third Circuit has "conclude[d] that the but-for causation standard required by Gross does not conflict with [its] continued application of the McDonnell Douglas paradigm in age discrimination cases,"*fn87 where, as here, a plaintiff has adduced no direct evidence of discrimination based on her age.*fn88

Under McDonnell Douglas, a plaintiff bears the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. "The existence of a prima facie case of employment discrimination is a question of law that must be decided by the court but the prima facie test remains flexible and must be tailored to fit the specific context in which it is applied."*fn89 If a plaintiff establishes her prima facie case, the burden shifts to the employer to "articulate some legitimate, nondiscriminatory reason for the employee's rejection. . . . The plaintiff then must establish by a preponderance of the evidence that the employer's proffered reasons were merely a pretext for discrimination, and not the real motivation for the unfavorable job action."*fn90

A plaintiff may demonstrate pretext, and so defeat a motion for summary judgment, by either "(i) discrediting the proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action."*fn91 The Third Circuit has cautioned that "[i]ssues such as intent and credibility are rarely suitable for summary judgment. . . . [because] discriminatory intent means actual motive, and is a finding of fact to be determined by the factfinder."*fn92 "To discredit the employer's proffered reason, however, the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent."*fn93 "Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, . . . and hence infer that the employer did not act for the asserted non-discriminatory reasons."*fn94

A plaintiff may establish a prima facie case of age discrimination under the ADEA by demonstrating that: (1) she is over forty, (2) she is qualified for the position in question, (3) she suffered from an adverse employment action, and (4) her replacement was sufficiently younger to permit a reasonable inference of age discrimination,*fn95 or her "employer retained a sufficiently younger similarly situated employee."*fn96

Kesselman was over fifty years old when she resigned her position at Sanofi.*fn97 There is no dispute that sales representatives who remained in Kesselman's group after her resignation were sufficiently younger than Kesselman to permit a reasonable inference of age discrimination, if the other elements of a prima facie claim are satisfied.*fn98

Defendant argues that Kesselman did not suffer an adverse employment action because she resigned voluntarily. Kesselman contends that the events leading up to her resignation- including poor performance reviews and accusations of misconduct,*fn99 denial of bonuses or raises she believed she had earned based on her sales numbers, coaching letters and criticism of her work, denial of her request to apply to another position within the company, and the implementation of the Final Written Plan and its subsequent extension after her return to work- created such a negative work environment that she was effectively forced to resign for the sake of her health, resulting in her constructive discharge.*fn100

To establish a claim of constructive discharge, and thereby satisfy the "adverse employment action" prong of the prima facie claim,*fn101 plaintiff must proffer evidence from which "'a reasonable jury could find that the employer permitted conditions so unpleasant or difficult that a reasonable person would have felt compelled to resign.'"*fn102 This is an objective test, under which, even where a plaintiff "may have subjectively believed that the[] circumstances were too onerous to bear," constructive discharge is established only where a "reasonable trier of fact could conclude that [the acts alleged] renders working conditions objectively intolerable."*fn103 Stressful, frustrating, and uncomfortable working conditions are insufficient; rather, a plaintiff must demonstrate a pattern of conduct that rises to the threshold of intolerability.*fn104

The Court recognizes that Kesselman's working situation was not a happy one, and accepts that she subjectively perceived it to be intolerable, but cannot hold that a reasonable person would have found the conditions too intolerable to continue working. However, even assuming that Kesselman could establish constructive discharge here, to sustain a claim under the ADEA she must also produce some evidence from which a reasonable factfinder could conclude that her age was the determinative factor motivating Defendant's actions. This, Kesselman has failed to do.

Kesselman acknowledges that she can point to no direct evidence of discrimination based on age-no Sanofi employee made a negative comment either directly or impliedly related to Kesselman's age, or suggested that she was unable to perform her job because of her age.*fn105

Kesselman has stipulated that Heslin was initially complimentary of her work, and his criticism did not begin until at least eight months after she was transferred to his team. *fn106 In fact, Kesselman does not allege any discriminatory act before February 2007, when Heslin noted a "dramatic down turn" in her sales, and after he discovered the discrepancies in her sales call records.

As evidence of age-based discrimination, Kesselman relies primarily on the fact that she continued to receive poor performance evaluations and was placed on the Final Written Plan even when her sales numbers were better than younger employees in Heslin's group and sometimes, better than regional or national averages.*fn107 There is a significant dispute between the parties as to the overall characterization of Kesselman's sales numbers;*fn108 both parties appear to acknowledge, however, that at times her numbers were better than average. For the purposes of summary judgment, the Court will accept Plaintiff's characterization of her sales as sometimes significantly better than "middle of the pack," and better than those of several younger representatives in Heslin's group.

However, without any evidence that those representatives also logged inaccurate sales calls, failed to master product information, were unable to analyze sales data and formulate a successful business plan, Kesselman cannot establish that she was treated less favorably than any "similarly situated" younger employee.*fn109 That employees younger than Kesselman do not appear to have been criticized or disciplined to the same extent is insufficient to demonstrate discrimination based on age without some evidence suggesting that these younger employees exhibited the same performance issues.*fn110

For example, Kesselman argues that she was singled out for discipline regarding the accuracy of her sales call records, but is unable to show that any other employee had the same inaccuracies.*fn111 Kesselman also asserts, as evidence of Heslin's discrimination, that she was deprived of a sales partner for long periods of time, while younger representatives consistently had partners. The Court accepts that loss of her sales partner significantly increased Kesselman's workload, but is unable to find any evidence in the record suggesting that she was deliberately deprived of a partner.*fn112 To the extent that Kesselman asserts she should have been held to a different standard in light of her lack of partner, she has been unable to tie this to her age in any way. While Kesselman's assertion that Sanofi should have evaluated her performance differently may be logically sound, it is not the Court's role to comment on the propriety of a company's review process, where a plaintiff has not offered any evidence that the employer's actions were motivated by discrimination. Indeed, this is the fundamental flaw running throughout Kesselman's case. It is not enough for her to show that Sanofi was wrong, mistaken, or even unreasonable in its treatment of her, "since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent."*fn113 Considering all the record evidence in the light most favorable to Kesselman, even if she were able to establish constructive discharge, a reasonable factfinder could not conclude that age-based discrimination was the but-for cause of Sanofi's actions.


For the foregoing reasons, the Court will grant Defendant's Motion for Summary Judgment. An appropriate Order follows.





AND NOW, this 30th day of March 2012, upon consideration of Defendant's Motion for Summary Judgment [Doc. No. 22], and all related briefing in opposition to and in support of that motion, and for the reasons set forth in the accompanying Memorandum Opinion, it is hereby ORDERED that Defendant's Motion is GRANTED.

It is so ORDERED.



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