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January 28, 2003


The opinion of the court was delivered by: Harry D. Leinenweber, United States District Judge.


Plaintiff Edward West ("West"), an African-American male born on September 5, 1938, filed a three-count complaint (the "Complaint") against Ortho-McNeil Pharmaceutical Corporation ("OMPC"), alleging that OMPC violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 ("ADEA") 29 U.S.C. § 621 et seq., when it terminated him on July 11, 2000. Before this Court is Defendant OMPC's Motion for Summary Judgment filed pursuant to FED. R. CIVD. P. 56. For the following reasons, the Court grants the motion in part and denies the motion in part.


In August 1997, Innovex, a company that provides pharmaceutical companies with contract sales representatives, hired Plaintiff Edward West ("West") and assigned him to OMPC. While working for Innovex, West was supervised by an employee from Innovex, and by Walter Pascale ("Pascale"), OMPC's District Manager for the Chicago South District. When OMPC's contract with Innovex expired in January 1999, Pascale and other members of the OMPC management team hired West, along with ten other Innovex employees, onto its direct payroll as sales representatives.

West's initial sales territory covered Naperville, Wheaton, St. Charles, Geneva, Aurora, Batavia, and Carol Stream, Illinois. In early 1998, while still an employee of Innovex, West was reassigned to a territory that included Orland Park, Palos, Blue Island, and the south side of Chicago. In or around October 1998, when OMPC decided to hire the Innovex employees, OMPC conducted a full territory realignment, which resulted, in part, in the reassignment of West's territory to Oak Lawn, Evergreen Park, and the southwest side of Chicago.

Both as an Innovex employee and as an OMPC employee, West was eligible for bonuses in addition to his salary. In calculating sales representatives' bonuses, OMPC's Sales Incentive Compensation Department used prior sales data to extrapolate performance estimates for each particular territory. From these estimates, OMPC established an expected performance baseline, or "quota" for each territory, and compared that quota to the sales representative's actual sales performances to determine the final bonus. If a representative changed territories mid-year, OMPC calculated bonuses by following this procedure for each territory in which the sales representative worked, and by then prorating the resulting bonus amounts according to the amount of time the representative spent in each territory. All bonuses were distributed in four installments throughout the year, with the initial three payments serving as "advances" based on performances to date. The final payment reconciled the advances with the year-end sales performance.

As a pharmaceutical company, OMPC is regulated extensively by the United States Food and Drug Administration (the "FDA"). Among other things, the FDA provides marketing standards for prescription drugs that companies such as OMPC must follow. OMPC, in turn, outlines some of these FDA rules and presents its own rules in a Sales Representative Policy Manual (the "Policy Manual") that it distributes to all sales representatives. Included in the Policy Manual is a bulletin titled "Unapproved Promotional Materials" that describes the FDA regulations on homemade marketing materials. (Taylor Aff., Ex. B.) This bulletin also includes a rule on "Homemade Sales Materials" that prohibits "the creation and use of unofficial sales materials." (Id.) This rule finishes with the warning that "SALES REPRESENTATIVES FOUND TO HAVE ISSUED THEIR OWN SALES MATERIALS OF ANY KIND WILL BE SUBJECT TO TERMINATION." (Id.) (emphasis in original). Another bulletin in the manual provides a rule on "Disparagement of Competition" that states, in part, that "[i]t is against company policy to disparage any competitor of OrthoMcNeil Pharmaceutical." (Id. at Ex. C.) On November 30, 1998, West signed a "Professional Sales Representatives Pledge of Ethics" and pledged, in part, that he would not "alter, create, and/or distribute `home-made' (not supplied by OMP) materials to health care professionals for any reason." (West Dep. Ex. 3.) Additionally, West received the Policy Manual in January 1999 when he was hired onto OMPC's direct payroll.

Prior to receiving the Policy Manual, and while still employed through Innovex, on or about August 13, 1998, West prepared and submitted a letter to a physician in his territory regarding one of OMPC's products. OMPC claims that when Pascale, West's supervisor, learned of this unauthorized mailing, he reviewed OMPC's policies prohibiting the distribution of "homemade" materials with West. In his deposition, West was unsure whether Pascale told him that the distribution was a violation or whether Pascale told him to run it by him before sending out such materials, but he formed the opinion that he needed to get management authorization before distributing such documents. On or around July 5, 2000, West again created and distributed a packet of materials to forty doctors and administrators at Holy Cross Hospital ("Holy Cross"), a customer in his territory. These materials included a cover letter written by West that disparaged a competitor's drug and that urged Holy Cross not to substitute that drug for OMPC's product. Among other things, West's letter asserted that the competitor product could inflict "instantaneous death" upon patients, and warned Holy Cross of the "huge punitive-damage award" that it could suffer if it replaced OMPC's product with the competing drug. West also included a petition supporting the retention of OMPC's drug on Holy Cross's formulary, numerous articles, including two Wall Street Journal articles that discussed punitive damage awards, an FDA fax to OMPC's competitor on which West had noted that the FDA had fined the company for misrepresentation of its product, and a product insert for the competitor drug.

According to OMPC, Pascale learned about West's actions on July 7, 2000 and informed his immediate supervisor, Cathie Taylor, the Regional Business Director. Taylor in turn informed Timothy Gribbin, the acting Field Sales Director, of West's actions and, along with Pascale, contacted every Holy Cross recipient of West's materials to apologize for the distribution. On July 10, 2000, Taylor requested West's termination, which was authorized that day by Gribbin. Pascale relayed news of the termination to West on July 11, 2000.

West, on the other hand, claims that Pascale was not merely a messenger in OMPC's termination process, but an active participant. West further alleges that Pascale had approved the dissemination of the Holy Cross materials before turning around and informing Taylor of West's "violation." West portrays Pascale as an invidious decision maker who punctuated West's employment with race-based and age-based remarks. He contends that in addition to playing an integral role in West's termination, Pascale discriminated against West through territorial reassignments and the alleged impact those shifts had on his bonuses, and stymied West's promotional opportunities. On September 1, 2000, West filed a claim with the Equal Employment Opportunity Commission (the "EEOC") and with the Illinois Department of Human Rights alleging race, sex, and age discrimination. The EEOC issued West a right-to-sue letter on February 27, 2001 and on May 21, 2001, West filed this suit.


Summary Judgment

Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A fact is "material" if it could affect the outcome of the suit under the governing law; a dispute is "genuine" where the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The burden is initially upon the movant to demonstrate the absence of a genuine issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986). In assessing the movant's claim, the court must view all the evidence and any reasonable inferences that may be drawn from that evidence in the light most favorable to the nonmovant. Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000). Once the moving party has met its burden, the nonmoving party "may not rest upon the mere allegations" contained in its pleading, but rather "must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990); Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir. 1989). It "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In the employment discrimination context, summary judgment is warranted where "the evidence, interpreted favorably to the plaintiff, could [not] persuade a reasonable jury that the employer had discriminated against the plaintiff." Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1570 (7th Cir. 1989)


Title VII makes it unlawful for an employer to terminate or otherwise to discriminate against an employee based on race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2 (a). In Count I, West charges that OMPC violated Title VII by discriminating against him based on his race and sex.

West's Sex DLscriminatian Claim

While West alleges discrimination based on his sex in his Complaint, OMPC does not address this allegation in its summary judgment papers and West provides no evidence to support a sex-based discrimination claim in his response. Summary judgment is mandatory "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. In such a situation, there can be "no genuine issue as to any material fact,' since a complete failure of proof concerning an essential ...

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