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ARNOLD v. JANSSEN PHARMACEUTICA

May 16, 2005.

ASHLEY ARNOLD Plaintiff,
v.
JANSSEN PHARMACEUTICA, INC., and JOHNSON & JOHNSON, INC. Defendants.



The opinion of the court was delivered by: MARK FILIP, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Ashley Arnold ("Plaintiff" or "Arnold") brings this lawsuit against Defendants Janssen Pharmaceutica, Inc. ("Janssen"), her former employer, and Johnson & Johnson, Inc. ("Johnson & Johnson") (collectively "Defendants") alleging employment discrimination on the basis of sex and disability in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. The case is before the Court on Defendants' Motion for Summary Judgment on all counts ("Motion"). (D.E. 125.)*fn1 For the reasons stated below, the Motion is granted in part and denied in part. I. Background*fn2

Plaintiff, Ashley Arnold, is a woman who worked for Janssen, a wholly owned subsidiary of Johnson & Johnson, from May 1995 to March 9, 2001. (Def. SF ¶ 1.) Janssen's sales and marketing organization is comprised of a number of different sales forces, including, the 500, 275 and CNS sales forces. (Id. ¶ 4.) The sales organization is comprised of various different positions. (Id. ¶ 5.) The office-based sales representative is an entry level position. (Id.) From there, an employee could be promoted to professional representative, senior representative, hospital representative, or other designations. (Id.) Sales representatives report to a district manager ("DM"), who reports to a regional business director ("RBD"), who reports to a field sales director ("FSD"). (Id.)*fn3

  Arnold began working for Janssen in May 1995 as an office-based pharmaceutical sales representative. (Def. SF ¶ 6.) Plaintiff offers evidence of numerous instances in 1995 where persons, including managers, at Janssen treated her in ways she considered discriminatory. She was referred to as "Robert's girl" by John Reardon, a human resources manager (apparently because she was recruited by Robert DelFemine) (Pl. SAF ¶ 27; Def. Resp. to SAF ¶ 27); male peers told her that her successes were only because of her looks (Pl. SAF ¶ 29); supervisors encouraged women, including Arnold, to get in a hot tub so that the women's bodies could be observed (Pl. SAF ¶ 30); she was the subject of sexual jokes and offensive stories (Pl. SAF ¶ 31); and once, at a baseball game, Arnold's breasts were compared to another woman's whom male managers speculated had had breast enhancement surgery (Pl. SAF ¶ 33).*fn4 In May 1997, Arnold was promoted to a specialty representative and was shortly thereafter promoted to speciality professional representative. (Id.) William Parks, the RBD for the 500 Central Region approved both these promotions. (Id.) In January 1998, Plaintiff was promoted to a regional training manager ("RTM") and reported directly to Parks. (Id. ¶ 7.) An RTM provides sales-based, skills enhancement training to representatives in the field, and the duties of an RTM include assisting at cycle meetings (unexplained) and riding with sales representatives. (Id. ¶ 8.) When Arnold assumed the position, it was a new position, and Arnold defined its scope. (Id. ¶ 9.) She provided training services to three different regions. (Id.)

  In or around August 1999, Plaintiff was promoted to a DM position for the 275 region in Manhattan, New York. (Def. SF ¶ 11.) Plaintiff had an apartment in New York but also maintained a residence in Elmhurst, Illinois, and commuted a disputed amount between the two cities. (Def. SF ¶ 11; Pl. Resp. to SF ¶ 11.) In that position, Arnold reported to Bob Oliver, the RBD for the 275 region, who reported to Bruce Ritchie, FSD for that region. (Def. SF ¶ 11.)

  At the time Plaintiff was hired by Defendants, she had not been diagnosed with chronic pain syndrome. (Pl. SAF ¶ 4.) By later 1995, she began having symptoms that affected her functioning at work (Pl. Dep. at 100), and she has since been diagnosed with chronic myofacial and neuropathic pain syndrome (id. at 98). She has pain escalations that limit her ability to function, as described in more detail below. According to Plaintiff, as her pain progressed in severity, she informed Parks and Randy McGonigal, her RBDs, every step of the way. (Pl. SAF ¶ 5.) From approximately January through April 2000, Plaintiff's ability to function at work was impaired and she missed some work sessions. (Pl. Resp. to SF ¶ 14.) In April 2000, Arnold took a medical leave of absence, and she returned to work in September 2000. (Def. SF ¶ 14.)

  In or around August 2000, Plaintiff requested that her physician give her a note releasing her to return work. (Pl. Resp. to SF ¶ 15.) She returned to work on September 11, 2000, with a work restriction that she not lift anything over 10 pounds and that she have a "local job." (Def. SF ¶ 16.)*fn5 Due to her restrictions, John Reardon, Janssen's executive director of Organizational Development and Employee Relations ("EROD"), placed Arnold in a temporary, rotation-type position working out of Chicago, where she was to perform discrete assignments and gain exposure to the human resources department. (Id. ¶ 17; Pl. Resp. to SF ¶ 17.) Reardon told Arnold that this was a temporary position. (Def. SF ¶ 18.) Around the same time that Reardon learned that Plaintiff needed to remain in Chicago, Brenda Cannady, an EROD field manager based in Naperville, Illinois, requested a transfer to New Jersey, and, as a result, her position was to become available. (Id. ¶ 19.) Reardon considered Arnold a candidate for Cannady's position. (Id.) Throughout the time Arnold worked the EROD rotation, she remained in the 275 sales organization on Ritchie's headcount and was paid her previous DM salary. (Id. ¶ 21.) While Plaintiff worked in this position, she worked mostly out of her home in Elmhurst. (Id. ¶ 22.) In late summer or early fall of 2000, Randy McGonigal, the Central Region 275 RBD, took a position as the senior director of sales training and worked out of corporate headquarters in New Jersey. (Def. SF ¶ 32.) McGonigal was replaced by Colleen Jones. (Id.)

  In January 2001, Reardon advised Arnold that Cannady was not transferring to New Jersey, and thus, the EROD position would not be available. (Id. ¶ 26.) Plaintiff interviewed for a reimbursement manager position reporting to Evelyn Sirface, a FSD. (Def. SF ¶ 27.) The parties dispute whether Reardon asked Sirface to interview Arnold (Def. SF ¶ 44) or whether Reardon actively opposed her for that position (Pl. SAF ¶¶ 66-67). Ultimately, the position was given to Jeff Newton, the 275 DM in Chicago. (Def. SF ¶ 42.)

  On February 6, 2001, Arnold spoke with 275 RTM Brad Torphy and learned that Newton had been selected for the reimbursement manager position and that Torphy had unofficially been slated to replace Newton as the 275 DM in Chicago. (Pl. SAF ¶ 82.) Arnold did not know that Newton's position might come open, and she called Ritchie and left a message about her interest. (Pl. SAF ¶ 82.) According to Defendants, potential DM candidates learn of openings through a number of different ways, including through FSDs, RBDs, and through the grapevine. (Def. SF ¶ 40.) The parties dispute whether Arnold expressed any interest in a DM position. Defendants offer testimony that between her return from medical leave and February 5, 2001, Arnold did not ask Ritchie or Parks for a DM position or if there were any DM positions available. (Def. SF ¶ 41.) According to Defendants, if Arnold had expressed a timely interest in the 275 DM position, it probably would have been given to her. (Def. SF ¶ 49.) In contrast, Arnold claims that she had informed Ritchie of her interest in a DM position and had never given any indication to anyone at Janssen that she was not interested in working as a DM.*fn6 (Pl. Resp. to SF ¶ 41.) Torphy was ultimately selected for the position by Colleen Jones with the involvement of McGonigal and Ritchie. (Pl. Resp. ¶ 50.)*fn7

  Arnold met with Reardon in the Naperville office on February 7, 2001, and Reardon advised her that Ritchie could no longer carry her on his headcount. (Pl. Resp. to SF ¶ 28.) According to testimony by Ritchie, however, Ritchie did not inform Reardon that he needed his headcount back immediately, and he could have carried Arnold for at least another month or so. (Pl. SAF ¶ 89.) Arnold testified that, in a discussion about the 275 DM position, Reardon told her that Torphy was the choice of Janssen management, but he did not tell her that Torphy had already been selected. (Pl. Resp. to SF ¶ 47.) Reardon told her that it had been decided that she would take a job as the 275 RTM. (Id.) Arnold talked with Reardon about past incidents of retaliation and sexual discrimination; she told Reardon that Cannady had assured her that Cannady had told Reardon about every incident Arnold had ever reported. (Pl. Resp. ¶ 29; Pl. SAF ¶ 86.) Reardon told Arnold that he had "forgotten." (Id.)

  In the February meeting, Plaintiff discussed with Reardon her lifting restrictions as applied to the RTM job and her view that she could not physically do the job. (Pl. SAF ¶ 84; Pl. Dep. 985-90.) Plaintiff requested a number of options instead of taking the 275 RTM position, including that she be made a "senior" RTM with supervisory duties and that she be allowed to work on a part-time or flex-time basis. (Def. SF ¶¶ 30, 34; Pl. Resp. ¶ 34.) Arnold also spoke with Colleen Jones about the RTM position and her lifting restrictions. (Pl. Resp. to SF ¶ 53.) Jones told her that the position did not seem a good fit for Arnold because of the lifting involved with the travel, and that the travel would involve as much as three months spent in Grand Rapids, Michigan, filling in for a district manager. (Id.; Pl. Dep. at 1025.) On February 23, 2001, Plaintiff sent Reardon a fax stating that she considered herself constructively discharged due to actions by Janssen management that constituted discrimination and sexual harassment that affected her both professionally and physically. (Def. SF ¶ 35.) Reardon responded to Plaintiff's fax with a letter, but he ultimately accepted her resignation effective March 9, 2001. (Id. ¶ 36.)

  II. Summary Judgment Standard

  Summary judgment is proper where "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). In determining whether there is a genuine issue of fact, the court "must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party." Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). To avoid summary judgment, the opposing party must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Summary judgment is proper 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 Corp. v. Catrett, 477 U.S. 317, 322 (1986).

  It bears emphasis that this case is before the Court on a summary judgment motion. Both sides make various arguments that are essentially predicated on assessments of who is telling the truth and whose claims are too implausible to credit. The Court cannot engage in ...


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