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Brady v. Boehringer Ingelheim Pharmaceuticals

September 26, 2008

SANDRA LEE BRADY, PLAINTIFF,
v.
BOEHRINGER INGELHEIM PHARMACEUTICALS, INC., DEFENDANT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

In this action, Plaintiff Sandra Lee Brady contends that Defendant Boehringer Ingelheim Pharmaceuticals, Inc. ("BIPI") discriminated against her in two instances: calculating her January 2005 pay raise and terminating her employment in July 2005. Brady alleges that this discrimination was based on her sex, age, and, in the case of her termination, disability. Brady also brings claims for failure to accommodate her disability and for retaliatory discharge under state law. Because Brady lacks sufficient evidence to support her claims, Defendant is entitled to summary judgment.

BACKGROUND

The following facts have been taken from the parties' Local Rule 56.1 statements and responses, and are not in dispute, unless otherwise indicated. Where a party's response to a Local Rule 56.1 statement of fact does not directly contradict the fact in question and the underlying support for the fact is sound, the court deems that fact admitted.

I. The Parties

BIPI is a specialty pharmaceutical and health care company headquartered in Ridgefield, Connecticut. (Def's 56.1 ¶ 1.) For purposes of its sales force, BIPI divides the country into regions. (Id. ¶ 2.) Within each region, BIPI divides its sales representatives among different districts. (Id. ¶ 3.) At all relevant times, BIPI employed Brady as a Professional Sales Representative ("PSR") in its Chicago North district of the Chicago region. (Id. ¶¶ 2-3; Pl.'s 56.1 ¶ 1.) While employed as a PSR, Brady's sales responsibilities included increasing BIPI sales by visiting medical professionals who can prescribe BIPI products or influence potential prescribers of those products. (Def's 56.1 ¶ 4.)

II. Pay Raise

In January 2005, Brady and several other PSRs in the Chicago North district were eligible for and received merit-based raises. (Def.'s 56.1 ¶ 8.) At that time, District Sales Manager Kimberly Gross was Brady's direct supervisor; Gross reported to Regional Manager Bill Somers. (Id. ¶ 5.) Gross was the primary decision-maker responsible for calculating the amount of those raises, but she received assistance from a more experienced manager, Pam Lester, and obtained approval from Somers. (Id. ¶ 9.)*fn1 Gross attested that she based pay raise decisions on a combination of factors: 50% sales performance and 50% other factors, including teamwork, leadership, and compliance with BIPI procedures. (Id. ¶ 10.) Brady at one point believed that she had received a 1% merit pay raise in January 2005. (Id. ¶ 11; Docket Entry No. 47 (2d Am. Compl.) ¶¶ 19, 31.) The pay raise notification, on the other hand, indicates that she received a 2% merit pay increase, effective January 1, 2005. (2005 Merit Increase dated 1/20/05, Ex. F to Def.'s 56.1.) There is no dispute that a 2% merit raise was the lowest in Brady's district. (Def.'s 56.1 ¶ 11.) Of the other eligible PSRs, one woman (aged 25) received a 5% pay increase; four women (aged 36, 40, 40, and 45) received a 4% pay increase; two women (aged 24 and 35) received a 2.5% pay increase; and one man (age 49) received a 2.5% pay increase. (Id. ¶ 25.) At the time the pay raises were announced, Brady was 48 years old. (Id.)

A. BIPI's Explanation

According to Defendant, her January 2005 pay raise was the lowest in the district not because of Brady's sales performance but, rather, because of the "other factors" consideration, which raised concerns about Brady's job performance. (Def.'s 56.1 ¶ 12.)*fn2 In particular, Gross points to four concerns that motivated her decision to give Brady a relatively low pay raise. Id. ¶ 24.) According to Gross, neither the employees who are significantly younger than Brady, nor the male employee, had performance problems as significant as Brady's. (Id. ¶ 26.)

First, the parties agree that, in March 2004, Physicians of the North Shore Ltd. sent a letter "to request that you remove Sandra Brady as a field rep for our practice. This includes both the Skokie and Northbrook locations." (3/8/03 Letter from K. Dietrich, Ex. G to Def.'s 56.1.) The letter requested that their request be honored "immediately." (Id.) Brady suggests that the incident was not her fault, and does not reflect poorly on her job performance. Brady testified during her deposition that BIPI management instructed her to create a "speaker program with Rush North Shore Hospital." ( Deposition of Sandra Lee Brady dated 1/10/07 ("Brady Dep.") at 148:2-149:7, Ex. D to Def.'s 56.1.) Although her testimony does not make it clear, it appears that Brady was told to arrange for a program at which a doctor from Rush North Shore Hospital and one from Physicians of the North Shore would deliver a joint lecture. (Id.) Brady testified that management told her to push the idea, even when it became clear that Physicians of the North Shore was not interested in participating. (Id.) According to Brady, the two physicians she was instructed to incorporate into the speaker program did not get along. (Id.) Thus, she believes that the incident was BIPI's fault, or even designed to justify giving her a small raise. (Pl.'s Resp. to Def.'s 56.1 ¶¶ 13-14.) Brady offers no evidence other than her own testimony to support this theory.

Second, Brady continued to have unauthorized contact with Physicians of the North Shore even after BIPI manager Pam Lester told her that she should no longer work with the company. In a July 2004 memorandum, Somers reprimanded Brady for this and other improper behavior. (7/12/04 Memorandum from B. Somers to S. Brady ("Somers Memo."), Ex. H to Def.'s 56.1.) The memo states that Physicians of the North Shore practice staff "erroneously" left messages for Brady, seeking BIPI samples. (Id.; Def.'s 56.1 ¶ 15.) Although Lester had instructed Brady not to contact Physicians of the North Shore, Brady did write Physicians of the North Shore a letter, in which she "vehemently disput[ed]" the reasons for her removal from the account. (Id. ¶ 16.) According to Somers, Brady's actions angered the office manager for the Physicians of the North Shore; Brady provides no contradictory evidence. (Somers Memo.) Somers informed Brady that her actions forced him to spend time cooling the angry office manager down. (Id.)

A third concern Gross considered was Brady's inappropriate behavior toward her colleagues. (Def.'s 56.1 ¶ 18.) In the Somers Memo, Brady was also reprimanded for interrupting co-workers who were trying to speak at office meetings. (Id. ¶ 19.) Brady does not dispute that she was reprimanded for these actions, though she questions whether it influenced the decision to give her a small merit pay raise. (Pl.'s Resp. to Def.'s 56.1 ¶ 19.) Somers also reprimanded Brady for saying, at a meeting in which employees were discussing "thrush," that new hire Elizabeth Coughlin "knew all about" yeast infections. (Somers Memo.) According to Somers, he could see that Coughlin was very embarrassed by the comment. (Id.) Brady counters that this comment was taken out of context by other BIPI employees, in that she was commenting on Coughlin's expertise with steroid sprays and the yeast infections they cause as side effects. (Def.'s 56.1 ¶ 20.) She does not, however, deny making the comment or offer any evidence that Coughlin was not "very embarrassed" by it.

As a fourth reason Brady received a low raise, Gross notes problems with Brady's expense reports. (Def.'s 56.1 ¶ 22.) For example, Brady sought reimbursement from BIPI for the full cost of her home high-speed Internet and cable package. (Id. ¶ 23.) According to Gross, this was inappropriate because cable television expenses were not reimbursable. (Id.) In addition, Defendant suggests that Brady charged BIPI for excessive tips and exceeded her budget for expenses. (Id.) Brady disputes this, claiming, based on her own deposition testimony that her previous supervisor had approved her cable television charges, and that she did not in fact incur personal charges on her corporate credit card. (Pl.'s Resp. to Def.'s 56.1 ¶ 23; Brady Dep. 194:4-23.) Brady did acknowledge, however, that Gross told her that it was not appropriate to seek reimbursement for cable television services. (Id.) Brady has not directly refuted the allegations that she gave excessive tips to vendors, or that the legitimate charges for which she sought reimbursement she made "far exceeded" her budget for expenses. Nor has she offered a basis to conclude that Gross's concern about these reimbursements was not genuine.

B. Brady's Explanation

Arguing that sexism motivated her low pay raise, Brady points to evidence that she claims establishing an inappropriate emphasis on physical attractiveness in the BIPI office. First, Brady contends that, when Gross became District Sales Manager for the North Chicago District in 2004, expectations for female PSRs changed. (Pl.'s 56.1 ¶ 7.) She relies on her own testimony that some PSRs at BIPI dressed in "erotic" clothing, after Gross took over as the District Sales Manager. (Brady Dep. 47:10-48:19; Pl.'s 56.1 ¶ 7.) Brady testified that Gross herself wore low-cut tops to work. (Id. at 47:16-48:2.) Sarah Longo, according to Brady, "was wearing . . . Lycra/spandex shirts with low necklines." (Id.) And "Kristin [Kanter] always wear [sic] shirts that were buttoned quite low." (Id.) Because of this, according to Brady, the office had to change its dress code (she does not explain whether the dress code was rendered more stringent or less stringent as a result of this change, nor has either side furnished a written copy of any dress code). (Brady Dep. 47:10-15; Pl.'s 56.1 ¶ 8.) As other evidence that the BIPI sales office prioritized attractiveness, Brady points out that the PSR personnel files produced in this litigation contained photographs of the PSR, either from driver's licenses or other images. (Pl.'s 56.1 ¶ 11.)*fn3 Finally, Brady opined that "80 percent of the sales force looked like female cheerleaders." (Brady Dep. 66:12-14; Pl.'s 56.1 ¶ 7.)*fn4 In fact, at one point, Coughlin (also a PSR) gave a presentation in a doctor's office that featured a "cheerleading routine," according to Brady. (Pl.'s 56.1 ¶ 12.) (The court is uncertain how Brady knew what happened during another PSR"s sales call.) Thus, Brady contends that the emphasis on being a "cheerleader"-type motivated her low pay raise.

In addition, citing her own testimony, Brady contends that ageism motivated her low pay raise. Brady testified at her deposition that BIPI's policies favors employees aged 24-26 over employees over 30, and that Gross was the first in the company to start "harassing and discriminating against people over 40." (Brady Dep. 115:4-21; Pl.'s 56.1 ¶ 6.)*fn5 Brady did not further explain these allegations of harassment and discrimination during her deposition or brief, other than to describe her own age discrimination claim. Based on this, ...


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