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Wilder v. Guilford Pharmaceutical Products

July 7, 2006


The opinion of the court was delivered by: Magistrate Judge King

In this employment discrimination action, Kristyn Wilder ("plaintiff"), formerly employed by Guilford Pharmaceutical Products, Inc., ("defendant"), asserts claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§2000e-5, and Chapter 4112 of the Ohio Revised Code ("O.R.C."), §§ 4112.02, 4112.99. Plaintiff alleges that defendant terminated her employment because of her pregnancy and because of her complaints of pregnancy discrimination.

This matter is before the Court on Defendant's Motion to Compel and for Sanctions, Doc. No. 48, and, with the consent of the parties, 28 U.S.C. § 636(c), Defendant's Motion to Dismiss, Doc. No. 40, and Defendant's Motion for Summary Judgment, Doc. No. 55. For the reasons set forth below, Defendant's Motion for Summary Judgment is GRANTED, Defendant's Motion to Dismiss and Defendant's Motion to Compel and for Sanctions are DENIED. Defendant's request for oral argument on its motion for summary judgment is DENIED.


Plaintiff was employed by defendant from February 17, 2003, until June 23, 2004, as a Clinical Hospital Specialist ("CHS"). Amended Complaint ("Am. Comp.") ¶ 6.*fn1 CHS's are responsible for promoting and selling a product and for educating doctors and other opinion leaders with regard to that product. Plaintiff's First Deposition*fn2 ("Pl. Dep. I") at 97-98. When plaintiff first began working for defendant she was responsible for only one product, the Gliadel Wafer, which is an implantable wafer form of chemotherapy. Pl. Dep. I at 97-98; Am. Comp. ¶ 7. The Gliadel Wafer is primarily used by neurosurgeons, oncologists and neurooncologists. Pl. Dep. I at 104.

During the period that plaintiff sold the Gliadel Wafer, Michael Least was her Area Business Director. Am. Comp. ¶ 12. Plaintiff was successful at meeting defendant's goals related to the Gliadel Wafer and, during that time period, plaintiff was awarded the "GLIADEL Central Area Impact Player of the Month for June, 2003" for her sales of the Gliadel Wafer. Exhibit 1 attached to Plaintiff's Answer to Motion for Summary Judgment ("Plaintiff's Memorandum Contra"),*fn3 Doc. No. 56. Plaintiff also received 1000 Sales Driver Points in the 4th quarter of 2003 in a contest instituted by defendant's Director of Sales and Marketing, Kerry Clem, for the purpose of increasing Gliadel sales and market share. Pl. Ex. 1; Am. Comp. ¶ 12.

In addition, plaintiff received a favorable performance review for her 2003 activities and received a salary increase and stock option award. Pl. Ex. 1; Exhibit 2 and Exhibit 4 attached to Defendant's Motion for Summary Judgment*fn4 ; Am. Comp. ¶ 18. Plaintiff alleges, too, that Mr. Least verbally informed her that her performance was exceptional and that her performance review would have been even more complimentary had she been with the company longer. Am. Comp. ¶ 12.

In October 2003, defendant acquired rights to the drug Aggrastat from Merck & Co., Inc. ("Merck") for a price of more than $80 million. Plaintiff's Second Deposition*fn5 ("Pl. Dep. II") at 12; Deposition of John Buergenthal*fn6 ("Buergenthal Dep.") at 55. Aggrastat is used primarily by cardiologists in the treatment of acute coronary syndrome. Am. Comp. ¶ 7.

In December 2003, defendant hired Carl Carlson and, in January 2004, Mr. Carlson assumed the position as the new Area Business Director to manage the territory in which plaintiff worked. Am. Comp. ¶ 11; Deposition of Carl Carlson*fn7 ("Carlson Dep.") at 117. Also, defendant introduced Aggrastat to its marketed product line in January 2004 and, at that time, the drug was added to the responsibilities of all CHSs, including plaintiff. Pl. Dep. I at 108. Consequently, from January 2004 through June 2004, when her employment with defendant ended, plaintiff took on the role of CHS for Aggrastat, as well as for the Gliadel Wafer. Anticipating increased time and demands that responsibility for Aggrastat would place on the existing CHSs, defendant expanded its employee base and reduced the geographical territory of each of its CHSs. Pl. Dep. I at 105-06, 108; Pl. Dep. II at 22.

Plaintiff's territory contained the largest prescriber of Aggrastat in the United States, Riverside Methodist Hospital ("Riverside"), a part of the Ohio Health System ("Ohio Health"). Pl. Dep. II at 54. Director of Clinical Technology Assessment for Ohio Health, Kathy Morman, testified that Riverside utilizes 95% of all Aggrastat purchased by Ohio Health. Affidavit of Kathy Morman ("Morman Aff.") ¶ 5.*fn8 Ms. Morman explains that Ohio Health received a special pricing arrangement from Merck based on the maintenance of a high market share of Aggrastat utilization within Ohio Health, and that, following Aggrastat's purchase by defendant, defendant and Ohio Health reached an agreement to continue that same price and volume arrangement. Id.

¶¶ 3, 4. Ms. Morman testified that, in order for the system-wide pricing arrangement to be of benefit to Ohio Health, Aggrastat needed to be aggressively promoted in both Riverside and the other "feeder hospitals" in Ohio Health. Id. ¶ 5.

On January 2, 2004, plaintiff alleges that she informed Mr. Clem that she was pregnant. Am. Comp. ¶ 10.

From January 4 through 15, 2004, after the addition of Aggrastat to its product line, defendant held its National Sales Meeting in Florida. Buergenthal Dep. at 88-89. The meeting was designed, among other things, to allow the CHSs to become familiar with Aggrastat and the aggressive sales strategy defendant planned to utilize for the drug. Pl. Dep. II at 10-12; Carlson Dep. at 146. All CHSs were asked to attend the sales meeting; however, plaintiff alleges that she informed Mr. Clem that she was unable to attend because of her pregnancy. Pl. Dep. II at 8-9. Mr. Clem allegedly responded that, while he wished plaintiff could attend, "the most important thing is for [her] to take care of [her]self." Id.

On January 15, 2004, apparently because plaintiff did not attend the National Sales Meeting, Mr. Carlson emailed her to express defendant's commitment to her success and its willingness to continue to work with her to ensure that she received proper Aggrastat training. Def. Ex. 10. The email also indicated that plaintiff should contact defendant's Human Resources Department to discuss the appropriate method of filing the days taken off work. We want to make sure to utilize the available HR programs to your benefit. Please follow-up w/me after your discussions to inform me of the progress and decisions made.


On February 3, 2004, a territory management meeting was held in Columbus, Ohio, where Mr. Carlson conveyed his concern to plaintiff that she had not completed Aggrastat training. Carlson Dep. at 54. Pl. Ex. 4. Plaintiff contends that "after several emails to both [Mr. Carlson] and the new Director of Training, Casaundra Copeland, [she] received the training objectives from Mr. Carlson via email on February 5, 2004." Mr. Carlson's email stated, in pertinent part:


1. Inform me on a daily basis re[garding] reception of the [training] CD so I can make sure you get it.

2. Complete your business plan per my email guidelines and examples sent by 2/11 COB

3. Contact Casaundra [Copeland] on a daily basis to discuss training progress and issues requiring clarification.

4. Contact [two co-employees] ASAP to schedule a day to work together to discuss Aggrastat, Gliadel and territory info[rmation] that can be exchanged to the benefit of all.

Pl. Ex. 3. Plaintiff does not indicate whether she complied with Mr. Carlson's expectations.

On February 15, 2004, plaintiff received a five page memorandum from Mr. Carlson which indicated that the management meeting held on February 3, 2004, was vital to "discuss [plaintiff's] progress and [defendant]'s expectations." Pl. Ex. 4. In the memorandum, Mr. Carlson expressed his concerns about plaintiff's performance, which he set out in the memorandum. Id. Mr. Carlson indicated that the deficiencies noted in the memorandum were "clear impediments to [her] success." Id. He added:

Please understand that this is a serious situation requiring your immediate attention. If you fail to meet the objectives noted above, further disciplinary action will result, which may include a more formal performance plan and/or termination of your employment.


In the Amended Complaint, plaintiff alleges that the deficiencies addressed in Mr. Carlson's February 15, 2004, memorandum "were all false and/or exaggerated." Am. Comp. ¶13. In Plaintiff's Memorandum Contra, plaintiff contends that defendant "would have the court to believe that a brand new manager, Mr. Carlson, in less than 10 business days, had cause for concern about a sales representative that had nothing but excellent reviews and was a top performer's ability [sic] to aggressively sale [sic] Aggrastat." Plaintiff's Memorandum Contra at 3. Instead, plaintiff contends, she was given this poor evaluation because she was pregnant. Id.

Plaintiff also sent an email to Mr. Carlson refuting all of the alleged deficiencies. Am. Comp. ¶ 14; Pl. Ex. 16.

On February 18, 2004, plaintiff reported to Mr. Buergenthal that she believed that she was being discriminated against based on her pregnancy. Am. Comp. ¶ 15. Plaintiff expressly alleges that she made a formal complaint that Mr. Carlson was intentionally making false statements about her performance. Id. However, Mr. Buergenthal responded that plaintiff was paranoid, that Mr. Carlson's memorandum was simply a statement of expectations and that plaintiff should "just live with it." Id.

Plaintiff alleges that she was never contacted by anyone in defendant's company in regard to her formal complaint of pregnancy discrimination, nor was she provided with complaint forms. Id. ¶ 18.

On February 26, 2004, Mr. Carlson accompanied plaintiff on a sales call to Riverside.

Pl. Dep. II at 54; Carlson Dep. at 195-96. Mr. Carlson testified on deposition:

Q: Was [plaintiff] meeting with customers and promoting [Aggrastat]?

A: I'd have to say no.

Q: Okay. Was that reflected in her sales dollars or --

A: It was reflected in her activity.

Q: Okay. Now, how do you know she wasn't meeting them?

A: Because, some of these documents -- when I'm with her she doesn't know the customers. We go places that she has never been to before.

Q: Okay. Give me an example of a place that you went to where she had never been before.

A: . . . we walked in [Riverside] and she knew no one. She didn't know the cath lab*fn9 supervisors. She did not know the policies adhered to, whether we had to check in etcetera. The last time we went to Riverside emergency department, she had to ask who the emergency department supervisor was to speak to him because she just didn't know who it was.

Carlson Dep. at 83-84. In addition, Mr. Carlson observed that plaintiff did not know the location of the various departments at Riverside and that she was taking "copious notes regarding personnel that she had never met." Id. at 196.

On that same day, February 26, 2004, plaintiff alleges, she met with Mr. Carlson and Mr. Clem and informed them that she believed she was being harassed and discriminated against on the basis of her pregnancy. Am. Comp. ¶ 19. Mr. Clem allegedly responded, "I don't care about you being pregnant, I just care about your sales." Id.

On March 18, 2004, Mr. Carlson sent a memorandum to plaintiff regarding her performance. Def. Ex. 13. The memorandum began by complimenting plaintiff's attempts at improvement; Mr. Carlson then indicated that he hoped the trend would continue by ensuring that plaintiff understood the "continuing requirements and expectations" of her position. Id. Mr. Carlson then set out ten deadlines to which plaintiff was to adhere. Id. In closing, Mr. Carlson stated:

Kristyn, please understand that while you have shown improvement, you must continue this trend by showing even more improvement. As my method of determining your improvement will be a review of your activities with regard to the requirements outlined in this memo and the memo of February 10, you must continue to meet the expectations outlined above.

Additionally, please keep in mind that failure to meet these expectations and deadlines noted above or to meet additional deadlines presented separately, will lead to further disciplinary action, which may ...

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