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Hans J. Rapold v. Baxter International Inc

January 30, 2013

HANS J. RAPOLD, PLAINTIFF-APPELLANT,
v.
BAXTER INTERNATIONAL INC., DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 C 7369--William J. Hibbler, Judge

The opinion of the court was delivered by: Rovner, Circuit Judge.

ARGUED JANUARY 12, 2012

Before EASTERBROOK, Chief Judge, and ROVNER and TINDER, Circuit Judges.

Hans J. Rapold, who is Swiss, sued the pharmaceutical company Baxter International, Incorporated ("Baxter") after it revoked an employ- ment offer for him to work as the Medical Director of Cellular Therapy at its corporate headquarters in Deerfield, Illinois. Dr. Rapold sued Baxter in state court and alleged a number of state law causes of action, but Baxter removed the case to federal court in reliance on Dr. Rapold's claim under Title VII, 42 U.S.C. §§ 2000e et seq. After the district court dismissed the state law claims, Dr. Rapold proceeded to trial on his Title VII claim. The jury returned a verdict for Baxter, and Dr. Rapold appeals. He claims that the district court erred by denying his motion for judgment as a matter of law and by refusing to tender a "mixed-motive" instruc- tion to the jury on the issue of why Baxter revoked his employment offer. We affirm.

I.

Baxter is a global diversified healthcare company with its world corporate headquarters in Illinois. In 2004, Baxter added "Cellular Therapy" to its already extensive array of businesses aimed at developing, manufacturing, and marketing products for the treatment and cure of diseases. The Cellular Therapy ("CT") business focused on developing new treatments using stem cells--specifically treatments for chronic myocardial ischemia and critical limb ischemia. Andrea Hunt, the Vice President of CT, oversaw the business from its inception and continued in that role at the time of trial. Hunt reported directly to Dr. Hartmut Ehrlich, Vice President of Global Research and Development for Baxter's Bioscience Division, and Ronald Lloyd, Vice President and General Manager of Regenerative Medicine. Hunt's supervisor Dr. Ehrlich is a German national and resided at the time in Vienna, Austria.

As Vice President, Hunt conducted an interna- tional search effort to find a CT Medical Director. This process began in 2004 when the Medical Director at the time, who was a Boston-based physician, declined to relocate to Baxter's corporate headquarters in Deerfield, Illinois. Baxter thus needed a new Medical Director to work with the United States Food and Drug Administra- tion ("FDA") and outside advisory boards (consisting of physicians and "key opinion leaders") in overseeing clinical trials and shepherding new therapies through the FDA-approval process. Baxter's international search for a CT Medical Director took over two years, and ulti- mately concluded in late 2006 with Dr. Rapold, a Swiss and Belgian national who resided in Germany.

Dr. Rapold holds the United States equivalent of an M.D. and a Ph.D., and also possesses the equivalent of board certification in both cardiology and internal medi- cine. He worked from 1992 through 1996 for the global pharmaceutical company Roche, where he led the throm- bosis research department in conducting worldwide clinical trials. He then worked as a consultant for the American pharmaceutical company Searle, overseeing two international clinical trials. Additionally, Dr. Rapold was the recipient of the prestigious Naegeli Prize (awarded for outstanding contributions to biomedical or clinical research) and authored over 74 peer-reviewed articles.

After interviewing Dr. Rapold twice via video- conference, Hunt sent him an offer letter in Decem- ber 2006. The letter stated that Dr. Rapold would be an "at will" employee, meaning that Baxter or Dr. Rapold could end the employment relationship "at any time and for any reason." Accepting the CT Medical Director position necessitated that Dr. Rapold relocate to Deerfield, Illinois, which meant securing a proper visa to enable him to work legally in the United States. Because of ongoing CT clinical trials, Baxter could not afford to wait for Dr. Rapold to obtain his visa before he began working. Thus, Baxter entered into a consulting agree- ment with Dr. Rapold to enable him to begin work im- mediately from Europe. The consulting agreement was entered between Dr. Rapold and Baxter Healthcare, S.A., a Baxter affiliate organized under Swiss law. The initial consulting term ran from January 2, 2007 through April 30, 2007. As Medical Director of CT, Dr. Rapold reported directly to Hunt.

Hunt testified that throughout Dr. Rapold's con- sultancy, she received reports of problematic behavior. Six incidents in particular formed the basis for her ultimate recommendation at the end of May 2007 to withdraw Dr. Rapold's offer of employment. Hunt and other Baxter employees testified about these incidents in detail at trial. Dr. Rapold testified as well, and for the most part simply denied ever having acted inap- propriately.

First, several of the individuals assisting Dr. Rapold in obtaining his O-1 visa complained about issues that they had working with him. Baxter sponsored Dr. Rapold in obtaining the visa, which is reserved for temporary workers who possess extraordinary ability or achieve- ment in the sciences or other specified categories. Christine Parro, the Human Resources Director for the CT team, testified that she received multiple complaints from both Baxter's internal employees assigned to assist with the process and the outside immigration attorney hired to represent Dr. Rapold in obtaining the visa. Parro relayed these complaints to Hunt, who also received some complaints directly. Specifically, a Baxter employee helping Dr. Rapold complained to Hunt that Dr. Rapold's repeated challenges to requests for infor- mation rendered him one of the rudest individuals with whom the employee had ever dealt. Similarly, the outside immigration attorney reported difficulty ob- taining necessary documentation from Dr. Rapold. He was unable to obtain the requisite three recommenda- tions from Dr. Rapold, who believed the third reference unnecessary on account of his renown and prestige. Because Dr. Rapold failed to provide the third reference, Hunt ultimately obtained an additional reference so that Dr. Rapold could obtain the visa. For his part, Dr. Rapold denied ever having been difficult to work with, although he did acknowledge that Hunt had ob- tained the third reference on his behalf.

Dr. Rapold also had difficulty from the outset with Baxter's information technology ("IT") personnel. For instance, he was unhappy with the standard Blackberry offered by Baxter because it lacked a Global Positioning System ("GPS") feature. Because Dr. Rapold continued to insist on a Blackberry with GPS, Hunt ultimately enlisted Dr. Norbert Reidel, Baxter's Chief Scientific Officer and a German national, to personally speak with Dr. Rapold and convince him to accept the Blackberry without GPS (which was the only Blackberry Baxter offered its employees). Dr. Rapold also refused to utilize the speakerphone Hunt repeatedly instructed him to use for weekly meetings at which he participated by phone. Instead, he insisted on using Skype (a software application that allows users to make voice calls over the Internet), which was not supported by Baxter's IT department and repeatedly caused Dr. Rapold's call to be dropped. Despite being told both verbally and in writing by Hunt to use a speakerphone (paid for by Baxter), Dr. Rapold maintained that the speakerphone would not solve the problem, which he attributed to the microphone in Baxter's conference room as opposed to the fact that Skype occasionally cut out during calls. He never did make the switch to a speakerphone.

The third incident informing Hunt's ultimate with- drawal of the offer occurred in February 2007. Because Dr. Rapold could not yet legally work in the United States, Baxter arranged a series of meetings in Toronto, Canada with members of the CT team. Two individuals present during those meetings were Lorna Williams, the CT Director of Research and Design Project Manage- ment, and Parro Uppal, CT Senior Marketing Director. According to Dr. Rapold, he believed certain recruit- ment metrics proposed by Williams and Uppal for clinical trials were unreasonable and "he was trying to bring them in line." In his effort to prevent what he termed "another recruitment blunder" for the trials, he acknowledged at trial that he "might have raised" his voice in order to make his view on the matter known. Uppal, however, recounted that Dr. Rapold became "very angry" about the process Williams pro- posed and that he was "shouting" and "very agitated" for what seemed like between fifteen and twenty min- utes. Both Uppal and Williams reported the incident to Hunt, who discussed Dr. Rapold's behavior with him when she saw him at meetings in Vienna, Austria. Specifically, Hunt informed Dr. Rapold that his behavior had been unprofessional and inappropriate. At trial, Dr. Rapold continued to maintain that he had acted professionally at all times, but acknowledged that when Hunt spoke to him in Vienna he assured her that he would refrain from "yelling and screaming"

(which he denied having actually done) in the future.

The fourth incident also involved Uppal. She testified that she had edited some slides prepared by Dr. Rapold for submission to an advisory board (composed of outside physicians from across the country to provide guidance in developing clinical trials). After e-mailing the slides back to Dr. Rapold for his review, she spoke with him on the telephone to discuss the changes. Uppal recounted her experience to Hunt, who testified that Uppal informed her that Dr. Rapold had "screamed and yelled at her on changing some slides and hung up the phone on her." Hunt later reviewed the slides and Uppal's modifications, which she characterized as "minor and cosmetic." For his part, Dr. Rapold asserted at trial that he neither yelled nor screamed at Uppal but firmly explained that as a marketing director it "was not among her functions to change the slides of the medical director." Dr. Rapold also denied ...


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