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Isbell v. Baxter Health Care Corp.

United States District Court, N.D. Illinois, Eastern Division

March 31, 2017

DEBBIE ISBELL, Plaintiff
v.
BAXTER HEALTHCARE, CORPORATION, Defendant.

          MEMORANDUM OPINION AND ORDER

          REBECCA R. PALLMEYER United States District Judge.

         Plaintiff Debbie Isbell worked for Defendant Baxter Healthcare Corporation (“Baxter”) from 2007 to 2013; during the end of that time her job involved promoting Baxter's products in other countries. Beginning in 2012, Isbell complained, about, among other things, the tendency of one of her coworkers, Blair Waite, to make comments about an erectile dysfunction drug, including references to the marketing campaign for the drug and a few inappropriate jokes. Isbell's own performance drew criticism from her co-workers, as well. Waite began excluding Isbell from meetings (it is unclear exactly when that started), and in July 2013, Isbell renewed her complaints to Baxter HR and added that she was being retaliated against for her 2012 complaints. Isbell's supervisor, Antoinette Gawin, terminated Isbell in August 2013, after receiving a variety of complaints from Isbell and about her. Isbell brought this action asserting retaliation under 42 U.S.C. § 2000e, et seq. for her internal complaints of purported harassment and retaliation. Baxter has moved for summary judgment, which the court grants for the reasons below.

         BACKGROUND

         Baxter, headquartered in Deerfield, Illinois, makes and markets healthcare products. (Def. Baxter's Local Rule 56.1 Statement of Undisputed Material Facts in Supp. of Summ. J. Mot. (“DSOF”) [24] ¶ 1.) Baxter hired Isbell, [1] who had previous experience in the healthcare industry, in March 2007 as a Group Marketing Manager in its “cellular therapies” business (“CT”). (Id. at ¶ 3; Pl.'s Statement of Additional Facts in Resp. to Def. Baxter's Mot. for Summ. J. (“PSOAF”) [33] ¶ 1.) Isbell's responsibilities included, among other things, “conducting market research; . . . working on regulatory issues; working on reimbursement issues; working on a Japan project; creat[ing] contracts; participating in advisory boards; and attending medical meetings.” (Pl.'s Resp. to Def. Baxter's Rule 56.1(a) Statement of Undisputed Facts in Supp. of Summ. J. Mot. (“Pl.'s Resp. to DSOF”) [38] ¶ 3.) Isbell had some disputes with her supervisor in the CT group, none of which are relevant here. (See id.at ¶¶ 4-6.)

         In November 2011, Isbell transferred into Baxter's Renal Division, where she became a Senior Manager for Market Access. (DSOF ¶ 9.) Market Access staff are “responsible for developing tools and products to help [business units for different countries] gain access to the health care system for an existing business[.]” (Dep. of Bruce Culleton, Ex. D to PSOAF (“Culleton Dep.”) [36] 18:22-19:10.) One of Isbell's primary responsibilities in this role was to create and maintain Baxter's global value dossier (“GVD”), which was “intended to be a repository of information from which all the marketers and people in that function would pull information.” (Dep. of Antoinette Gawin, Ex. A to PSOAF (“Gawin Dep.”) [33-1] 82:16-83:1.) Isbell worked on other projects, as well. (See id.) When she began working in Market Access, Isbell reported to Gary Inglese, but after Inglese left Baxter at the end of 2012, Isbell began reporting to Antoinette Gawin. (DSOF ¶¶ 9, 12; see Gawin Dep. 4:3-6.) Before Inglese departed, he wrote Isbell's 2012 performance review. (Dep. of Deborah Sarason, Ex. F to PSOAF (“Isbell Dep.”) [40]-[43] 172:19-174:9.) Isbell testified that Inglese had told her that her performance exceeded expectations, but when she received the review in early 2013, she found that Baxter rated her as “meets expectations.” (Id.)

         I. Isbell's Internal Complaints at Baxter

         A. 2012 Complaints to Inglese

         Isbell's complaints centered primarily on Blair Waite, a senior director of new product development at the time Isbell was terminated. (Dep. of Blair Waite, Ex. E to PSOAF (“Waite Dep.”) [37] 13:19-22.) Before he worked at Baxter, Waite had worked at Eli Lilly Pharmaceuticals, where he helped develop the marketing campaign for the erectile dysfunction drug Cialis. (DSOF ¶ 52.) Waite acknowledged that when he worked at Eli Lilly, a coworker had complained about a comment Waite had made about the physiological effects of Cialis, and that Waite received a verbal warning as a result. (Waite Dep. 69:12-71:5.)

         Isbell testified that during meetings, Waite “brought up Cialis and talked about Cialis and what he did and how he launched it and how successful it was and how . . . he can bring that marketing expertise . . . .” (Isbell Dep. 148:8-16.) Isbell also described two incidents where Waite and Inglese joked about Cialis and erectile dysfunction in her presence, in December 2011 and March 2012.[2] (See id. at 148:8-151:15.)

         Isbell described one incident that occurred in December 2011, when she was in Waite's office with Inglese and Waite. (Id. at 148:22-149:18.) Inglese and Waite spoke about Cialis and made “innuendos, like bantering back and forth about like, hey, you know, I might need some of that. Oh yeah. Oh yeah, I do too, and, it just, you know, it just was inappropriate.” (Id.) According to Isbell, Inglese said “I need some of that, ” while Waite responded “oh, yeah, yeah, I bet you do.” (Id. at 149:19-23.) Isbell recalled that these comments went on for “maybe a minute.” (Id. at 149:24-150:4.) On another occasion, in March 2012, Isbell was again in Waite's office with Waite and Inglese, “talk[ing] about work streams and strategies for market access and where that fit into marketing work streams.” (Id. at 150:5-19.) Inglese again mentioned Cialis, and the same kind of banter went on, again for about a minute. (Id. at 150:20-151:8.)

         Isbell has identified only two occasions in which Waite joked about Cialis, though she testified that Waite did continue to discuss Cialis in meetings. Isbell felt this was inappropriate, because it was repetitive, it “had nothing to do with what we were working on, ” and she “didn't really want to think about erectile dysfunction in [her] day-to-day work environment.” (Id. at 151:9-24.) Isbell does not explicitly say how many people were at these general meetings where Waite described his successful marketing efforts for Cialis, but she testified “if he did it once and said what a great marketer he was to the team of 40 people, that would have been sufficient, but it kept being brought up again and again and again.” (Id. at 152:1-11.) Waite denies that he made sexual jokes about Cialis at work, but acknowledged he may have done so outside of work. (Waite Dep. 43:8-44:18.) He admitted that he may have made what Isbell called “nonsexual” Cialis jokes in meetings; Waite's example was that in a marketing meeting he might have said “hey, I've gone this far [in this meeting] and I haven't made a single marketing reference to Cialis.” (Id. at 44:19-45:18.)

         Isbell also complained that Waite kept “all this Cialis sales paraphernalia all over the place” in his office. (Isbell Dep. 145:11-22.) Specifically, there were six or seven items: five-inch long bathtubs bearing the Cialis logo (presumably an homage to the television ads depicting side-by-side bathtubs), and some Cialis brochures. (Id. at 146:15-147:9.) Isbell acknowledged that none of the Cialis promotional materials displayed genitalia, but she was uncomfortable seeing them in a professional situation (id. at 147:10-22); she stated that she looks away when she sees Cialis commercials on television. (Id. at 147:23-148:2.)

         Isbell testified that Waite did other things that made her uncomfortable-on one occasion, he “walked by [her] cubicle, stepped in, whispered in [her] ear, [‘]you're paranoid.[']” (Id. at 145:2-8.) Sometime in 2012, Isbell told Inglese about this incident and added that she was “very uncomfortable going into [Waite's] office because there's all this Cialis paraphernalia all over the place, and . . . [she had] to listen to, you know, the chatter about, you know, joking around about erectile dysfunction or alluding to it.” (Id. at 145:2-24.) Isbell recalls that the Cialis marketing materials “went away about a week [after she talked to Inglese]” (id. at 159:3- 15), though Waite denies being told that Isbell had complained about him to Inglese. (Aff. of Blair Waite, Ex. I to DSOF [24-4].)

         B. Complaints to Gawin About Exclusion

         Waite testified that in March or April 2013, an employee named Bernadette Connolly Buntin directed or recommended that Waite exclude Isbell from meetings at which employees would discuss their individual “work streams” (these meetings were called “Work River”). (Waite Dep. 17:8-22, 33:10-37:11.) Waite further testified that Isbell was also excluded from GVD meetings (again, one of Isbell's primary responsibilities), also beginning in March or April 2013.[3](Id. at 38:18-39:1.) Isbell testified that Waite lied about the exclusion, telling her that it was the result of an e-mail “glitch, ” when she confronted him (she does not say when she did so). (Isbell Dep. 45:23-46:18.) Waite himself does not recall speaking directly with Isbell about her exclusion from GVD meetings. (Waite Dep. 42:16-18.)

         In late 2012 or early 2013, Isbell complained to Gawin that Waite was excluding her from meetings. (Gawin Dep. 46:13-47:15.) Gawin testified that she did not document or report this complaint because she did not believe Baxter required her to do so. (Id. at 47:16-48:24.) Isbell told Gawin that the exclusion made it difficult for Isbell to complete her work. (Id. at 50:23- 51:10.) Sometime after Isbell complained to Gawin, Gawin spoke to Waite; at some point later, Gawin says, Isbell told her she was being included more frequently. (Id. at 58:19-60:23.) Another time in 2012 or early 2013, Isbell again complained to Gawin, this time about being excluded from “broader renal team efforts.” (Id. at 62:9-64:1.) Gawin testified that another of Isbell's coworkers, Tom (no last name is specified) had complained about the same thing. (Id. at 65:24-66:11.) Though Waite was part of the renal team, Gawin characterized this complaint as a “general complaint, ” not specifically about Waite. (Id. at 64:1-65:8.) Gawin spoke to the renal group leader, but again did nothing else to document or report Isbell's grievance.[4] (Id. at 65:9-67:4.) Gawin testified that Isbell “complained about a lot of people, ” but these were the only specific instances she could recall. (Id. at 67:10-24.)

         II. Baxter Employees' Complaints About Isbell

         Meanwhile, Gawin developed concerns about Isbell's work performance. Specifically, “Gawin's personal observations of [Isbell's] work led Gawin to conclude that [Isbell] did not understand Market Access.” (DSOF ¶ 15.) Gawin attributed “a number of . . . big deliverables that had been missed along the way” to Isbell's performance (Gawin Dep. 81:24-82:4), and Gawin believed Isbell “lacked the expertise to work effectively with Baxter's key opinion leaders.” (DSOF ¶ 17.)

         Throughout 2013, multiple employees, including Baxter executives, complained about Isbell, often directly to Gawin. (Id. at ¶ 18.) Isbell herself admits that several of these complaints were made. (Pl.'s Resp. to DSOF ¶ 18.) In particular, sometime in 2013-Gawin could not give a specific date-Seema Sondhi, who led Baxter's European health economics team, told Gawin that Sondhi's team members found calls with Isbell to be “a waste of time and unproductive[.]” (Gawin Dep. 74:3-75:21.) Gawin was unable to identify which team members specifically felt this way. (Id.) Gawin also identified other complaints; though she did not say when she received them, the parties apparently agree that the complaints against Isbell were made in 2013. (Gawin Dep. 79:14-81:23; see DSOF ¶ 18.) Another health economics team leader, Suzanne Laplante, told Gawin, as Baxter characterized it, “that [Isbell] did not comprehend basic material, was not listening to other people's input on conference calls, ignored written input co-workers had sent her[, ] and was alienating members of the global team.” (DSOF ¶ 20.) Lili Wei Turek and Angela Murray, both Senior Directors for Market Access, complained to Gawin about Isbell's work performance. (Id. at ¶ 22.) Gawin testified that Tom Dovas, another co-worker, “complained not about her performance, but because of her performance, people were coming to him and asking him to do work that [Isbell] was supposed to be doing.” (Gawin Dep. 80:3-15.)

         Similarly, on June 25, 2013, Bruce Culleton, Baxter's Senior Medical Director, e-mailed Turek and another employee, who presumably had some authority over staffing, about staffing for a strategy team. (Ex. 1 to Aff. of Antoinette Gawin (“Gawin Aff.”), Ex. C to DSOF [24-2]; see Culleton Dep. 15:8-19.) Culleton requested that Isbell and another employee be replaced with “more senior members of Market Access.”[5] (Id.) On July 19, 2013, he again e-mailed Turek, this time relating that two Baxter employees, Hoyee Leong and Rona McGreevy, were

very concerned with [Isbell's] style in the management of a trusted vendor and her poor communication skills with the internal GVD team. Rona McGreevy stated that she was embarrassed by [Isbell's] behavior during a teleconference[.]
I strongly believe that [Isbell's] ongoing participation in this process will lead to continued dysfunction, missed timelines, and poor quality.

         (Ex. 2 to Gawin Aff., Ex. C to DSOF [24-2].)

         Culleton also testified that he met with Leong and McGreevy, and that McGreevey told Culleton about a conference call; McGreevey said that she “had never felt so embarrassed to be a Baxter employee because of [Isbell's] performance and the way she treated the people on the other end of the line.” (DSOF ¶ 28; Culleton Dep. 29:21-34:11.) Turek forwarded both of Culleton's e-mails to Gawin. (See Ex. 1-2 to Gawin Aff., Ex. C to DSOF.) Gawin testified that sometime in 2013, while the GVD project was in progress, she discussed Isbell's performance with Culleton; Gawin characterized Culleton's opinion as “[Isbell] doesn't know what she's doing.” (Gawin Dep. 78:19-79:13.) Without offering more specifics, Culleton himself testified that he was “frustrated” about the GVD development and that he “felt that [Isbell] was incompetent in her management and development of the GVD. The GVD . . . . was next to garbage when it was done. So much so that we had to suggest that [the project vendor] start again.” (Culleton Dep. 41:19-42:7.)

         Waite also testified to several complaints that he received about Isbell, though he did not recall when they occurred. (Waite Dep. 62:21-63:6.) For example, Derek Wiebenson, a manager in Europe, complained that “[Isbell] had not taken . . . feedback” despite “repeated attempts.” (Id. at 63:1-3, 7-23.) Waite also related complaints from Josh Miller, a senior director of operations and strategy, that Isbell did not listen to feedback and that Miller would not “go to any more meetings [for a project that Isbell led] because there wasn't a value in them.” (Id. at 63:3-4, 63:24-64:9.) Waite testified that he received complaints from Ursula Ruegsegger, director of marketing in Europe, and Keely Stevenson, a manager in Europe, as well, though he did not describe the contents of those complaints. (Id. at 62:21-63:6.) Waite described a meeting in January or February 2013 with “leadership”[6] where he gave feedback about Isbell for a written review. (Id. at 56:11-58:2, 58:18-59:5.) Waite does not recall whether Gawin attended that meeting, but he believed that he met with Gawin about Isbell's performance “in that period of time.” (Id. at 58:12-17.)

         Isbell testified that, in May or June 2013, Gawin told her that Waite and Culleton did not want her attending their meetings.[7] (Isbell Dep. 167:23-169:15.) Culleton, however, did not recall discussing Isbell's performance with Gawin. (Culleton Dep. 24:1-7.) In light of the resistance to Isbell's participation in meetings, Gawin testified that she “struggled” to determine how Isbell could “get the content and deliverable met.” Gawin concluded that Isbell “did not understand [M]arket [A]ccess.” (Gawin Dep. 69:5-24.) Gawin described her opinion of Isbell's work:

[W]e were getting to a point where no one wanted to work with [Isbell].
So we not only had an issue of the projects not being delivered, I had been rescoping and restructuring them and putting other people in those projects so that we could get them delivered to the rest of the business. But we got to a point where I had nothing left that I could scope out so narrowly to let her do.
And she had alienated so many people that we were losing credibility as a team, as function, and I was losing credibility personally because I wasn't addressing the issue.

(Id. at 82:1-15.) Gawin had “ongoing discussions about [Isbell's] performance[, ]” and she testified that she and Isbell had “very frequent coaching sessions.”[8] (Id. at 73:1-74:2.)

         Gawin testified that she started discussing terminating Isbell with Julie Junkin, Baxter's Human Resources Director. (Id. at 83:15-84:9; Dep. of Julie Junkin, Ex. C to PSOAF (“Junkin Dep.”) [34-1] 21:2-23.) She could not, however, recall precisely when this first discussion occurred, other than it was “probably” two to three months before actually terminating Isbell in August 2013:

Q: Okay. When did you talk to Junkin about firing [Isbell]?
A: Without going back through logs, I don't know precisely. But I would-it- it would have probably been-you know, we had been talking about her performance for some time. So when somebody is underperforming at that level, letting go of somebody is always something you're thinking about, you know, if this person doesn't work out, particularly with a really small team. So I would say probably, in the, you know, two to three months leading up to that at least.
Q: Because you-you-so you talked to-according to you, you talked to Junkin about firing Debbie two to three months prior to the time that she was fired?
A: Probably. I think things came to a head because we had gotten so many formal complaints from other parts of the business where people were then going in to their HR people and saying these market access people don't know what they're doing.

         (Gawin Dep. 83:15-84:9.) Junkin testified that she told her own supervisor that Gawin wanted to let Isbell go in “[a]pproximately the end of June, the beginning of July of 2013.” (Junkin Dep. 58:2-22.) Gawin testified that she and Junkin “both went away [from their discussion about terminating Isbell] and said let's think about it, what are the other options.” (Gawin Dep. 85:9- 18.) Gawin thought that Junkin “wanted to talk about it with her HR leader” and “wanted to check with some other people, you know, about implications, ” while Gawin “wanted to think about it in the context of the team, and was something else [sic] we could do.” (Id. at 85:9-23.)

         On July 12, 2013, Isbell e-mailed Gawin that she wanted to apply for two other positions posted at Baxter. (Ex. 29 to Isbell Dep., Ex. B to DSOF [24-1] at 538.) On July 24, 2013, Gawin and Isbell had a phone conversation about Isbell's performance. (DSOF ¶ 43; see Isbell Dep. (Gawin Dep. 73:10-20) (emphasis added.) Whatever label may have been attached, Isbell does not deny frequent meetings with Gawin about her performance. (Pl.'s Resp. to DSOF ¶ 39.) 230:22-235:21.) The parties agree that Gawin “screamed” at Isbell (DSOF ¶ 44), and Isbell testified that it “was a one-way conversation, and there were not questions asked of me. It was basically [Gawin] screaming at me[.]” (Isbell Dep. 234:16-235:7.) Gawin told Isbell that “this isn't working out.” (DSOF ¶ 45.) Gawin wrote a memorandum to summarize this conversation; Gawin wrote that she warned Isbell that her “relationships within the team have deteriorated, and the working process is challenging at best.” (Ex. 3 to Gawin Aff., Ex. C to DSOF [24-2].) Gawin's memo also states that she told Isbell that Gawin had received “unsolicited feedback” about “unprofessional behavior” and “unwillingness to support group decisions.” (Id.) Gawin “urged [Isbell] to reflect on her assumptions” and “evaluate both her communications and her interpersonal interactions.” (Id.) Isbell denies that the memorandum accurately reflects the call, but does not explain how it is inaccurate. (Pl.'s Resp. to DSOF ¶ 46.)

         III. Isbell's July 2013 Complaint to Junkin and Investigation

         On July 12, 2013 (the same day that Isbell e-mailed Gawin about her interest in other positions), Isbell e-mailed HR Director Junkin with three complaints. First, she complained that Waite “continues to discredit me at meetings, cuts me off, does not allow me to ask questions which are germane to the discussion, not inviting me to meetings that I need to be present at which inform my workflow (i.e. GVD), talking to others about me to get them not to cooperate with me.” (Ex. 28 to Isbell Dep., Ex. B to DSOF [24-1] at 540-41.) Second, she accused Waite of retaliation because of her complaints to Inglese that the references to Cialis and the marketing materials in Waite's office made her uncomfortable. (Id.) Finally, she claimed that Waite and another employee had asked for feedback on a marketing strategy, which she provided, but then “they cut off the discussion and I did not see the marketing pieces again. . . . This started a cascade of events which began with me being taken off of meetings in retaliation for giving honest feedback when asked.” (Id.) In this e-mail, Isbell pointed out that Junkin had not accepted Isbell's request for a phone call from Isbell, and Isbell asked for Junkin's supervisor's name, so that Isbell could contact the supervisor if Junkin was not available. (Id.) Junkin considered this request “bullying” and a threat to go to Junkin's boss. (Junkin Dep. 45:3-17.)

         Junkin did agree to speak to Isbell, and she and Isbell spoke on the phone on July 16, 2013, about these complaints (this appears to be the meeting that Isbell had requested). (DSOF ¶ 62.) Junkin testified that Isbell also complained about Culleton, though Isbell did not mention Culleton in her July 12 e-mail. (Junkin Dep. 43:7-47:16.) Junkin recalled that Isbell also “mentioned” Inglese during this conversation, but the parties cite to no testimony that Isbell renewed her 2012 complaint about Inglese, who was no longer at Baxter. (Id.) Junkin testified that at ...


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