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Keen v. Teva Sales and Marketing, Inc.

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

March 20, 2018

JANICE KEEN, Plaintiff,
v.
TEVA SALES AND MARKETING, INC., and TEVA PHARMAECUETICALS USA, INC., Defendants.

          MEMORANDUM OPINION AND ORDER

          Ruben Castillo, United States District Court Chief Judge

         Janice Keen ("Plaintiff) brings this 37-count employment discrimination lawsuit alleging that Teva Sales and Marketing, Inc. and Teva Pharmaceuticals USA, Inc. (collectively, "Teva" or "Defendants") discriminated and retaliated against her because of her disability and gender in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C, § 12101 et seq., the Illinois Human Rights Act ("IHRA"), 775 Ill. Comp. Stat. 5/1401 et seq., and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (16-cv-9964, R. 26, Am. Compl. at 1-172.[1]) Plaintiff also brings claims under the Illinois Whistleblower Act ("IWA"), 740 Ill. Comp. Stat. 174/1 et seq., and a claim for retaliatory discharge under Illinois law. (Id.) Defendants move for summary judgment on all of Plaintiff s claims.[2] (14-cv-9626, R. 81, Mot. for Summ. J. at 1; 16-cv-9964, R. 30, Suppl. Mot. for Summ. J. at 3.) Plaintiff opposes the motion, and moves to strike Defendants' reply brief and sanction Defendants for raising arguments in their reply that were not raised in their motion for summary judgment. (Id., R. 47, Mot. to Strike.) For the reasons set forth below, Defendants' motion for summary judgment is granted, and Plaintiffs motion to strike and for sanctions is denied.

         RELEVANT FACTS[3]

         This suit implicates facts and numerous discrete incidents that occurred over several years during Plaintiffs employment. The Court, therefore, only summarizes those facts that are material to Plaintiffs claims. The following facts are undisputed unless otherwise stated.

         I. The Parties and Plaintiffs Supervisors

         Defendants are Delaware corporations and pharmaceutical companies. (14-cv-9626, R. 86-1, Pl's Resp. to Defs.' Statement of Material Facts [hereinafter "SOMF"] ¶ 1; 16-cv-9964, R. 28, Answer to Am. Compl. at 2.) In June 2005, Keen was hired as a sales specialist by Cephalon, a pharmaceutical company later acquired by Teva. (14-cv-9626, R. 86-1, Pl's Resp. to Defs.' SOMF ¶ 3, ) As a sales specialist, she was responsible for selling pharmaceuticals in the Chicago area. (Id.) The physical requirements of her job included daily driving, getting in and out of her car, carrying promotional materials, climbing and descending stairs, and walking to and from physicians' offices. (16-cv-9964, R. 28, Answer to Am. Compl. at 3.)

         Prior to Teva's acquisition of Cephalon in October 2011, Plaintiff reported to Katherine Stanek. (14-cv-9626, R. 86-1, Pl's Resp. to Defs.' SOMF ¶ 3.) Shortly after the acquisition, Plaintiff began reporting to Scott Bischoff, Teva's Chicago regional sales manager. (Id. ¶ 4.) Sometime in 2013, Mike Rothweiler replaced Bischoff as the regional sales manager, and Plaintiff then began reporting to him. (Id.) Stanek, Bischoff, and Rothweiler all reported to Matthew Muller, who was a director of sales at Cephalon and later the director of sales for Teva's "central nervous division" following Teva's acquisition of Cephalon, (Id. 5.)

         II. Plaintiffs Leaves of Absence in 2010-2012

         In November 2010, Plaintiff was involved in an automobile accident while she was working and injured her neck and shoulder as a result. (Id., R. 86-5, Keen Oct. 14 Dep. Tr. at 34, 37.) After the accident, she took a leave of absence for approximately five months and returned to work either "at the end of April or early May" in 2011. (Id. at 40-41.) Shortly after the accident, Plaintiff filed a claim with the Illinois Workers' Compensation Commission ("IWCC") related to the accident. (16-cv-9964, R. 41-2 at 86, Workers' Comp. Claims.) In November 2011, Plaintiff underwent surgery to repair a torn rotator cuff, and she took a one month leave of absence following her surgery. (14-cv-9626, R. 86-1, Pl's Resp. to Defs.' SOMF ¶ 11.)

         The following year, Plaintiff underwent spinal surgery to repair injuries she suffered in the November 2010 car accident and took another leave of absence. (Id., R. 86-5, Keen Oct. 14 Dep. Tr. at 51-53.) Her leave began in June 2012 and lasted for twelve weeks, at which time Plaintiff exhausted her leave under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. (Id. at 52-53.) Just a few months after she returned, Plaintiff discovered that her spinal surgery had failed and that she would need another surgery. (Id., R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 16.) On December 12, 2012, Plaintiff met with Teva's director of human resources, Rob Bobrowski, and explained to him that "she was going to be off work for an extended period of time because of her disability of degenerative cervical disc disease" and surgery she had scheduled. (Id., R. 89, Defs.' Resp. to Pl.'s Statement of Additional Material Facts [hereinafter "SOAMF"] ¶ 22.) Later in December 2012, Plaintiff underwent a second spinal surgery which led to an extended leave of absence from Teva. (Id. ¶¶ 5, 11, 22.)

         III. Plaintiffs Leave and Return to Work in 2013[4]

         While Plaintiff was still on leave, Plaintiffs physician, Dr, Gary Shapiro, wrote a letter to Defendants on May 8, 2013, informing them that Plaintiff was scheduled for another spinal surgery on May 17, 2013, and that she was to refrain from work until the surgery. (Id., R. 81-12 at 16, May 8, 2013, Shapiro Letter.) Dr. Shapiro also informed Defendants that Plaintiff would need two to six weeks to recover. (Id.) Plaintiffs surgery, however, was cancelled, (Id., R. 89, Defs.' Resp. to Pl's SOAMF ¶ 9.) Soon after, on May 23, 2013, Bobrowski wrote a letter to Plaintiff, which stated:

As you know, you have been out of the workplace and field since December 21, 2012. In addition, this time has not been approved under Teva's Family Medical Leave Policy and Leva's Short Term/ Long Lerm disability plans. Lhus, your time is currently categorized as personal, unpaId., non-FML leave. Also, since that time, Teva has provided you with full benefits and use of a company car.
For approximately five (5) months, the Company has accommodated your requested leave and kept your position vacant pending your return. We ask that you notify us no later than May 31, 2013 as to your work status. Please have your physician review your job description and complete the Physical Capabilities Checklist (attached), confirming if you are fit for duty and identifying any restrictions or accommodations necessary and, indicating if/when you will be able to return to work. . ..
If you are unable to return to work on or around June 3, 2013, and perform the essential function of your job, with or without accommodation, you will be administratively laid off from your employment. However, if you are laid off, you are invited to contact us when you are able to return to work to discuss any available positions for which you may be qualified[.]

(Id., R 81-12 at 18, May 23, 2013, Bobrowski Letter.)

         In response, on May 29, 2013, Plaintiff faxed a letter to Teva's nurse care manager, Donna Montagna, representing that her physician had released her to return to work on June 3, 2013. (Id., R. 81-12 at 20, May 29, 2013, Keen Letter.) Attached to the fax was the Physical Capabilities Checklist (the "Checklist") that Teva had enclosed with Bobrowski's May 23 letter, which was completed and signed by Dr. Shapiro. (Id.) The Checklist detailed Plaintiffs physical capabilities and limitations, indicating that she could: (1) lift, cany, push, and pull up to 10 pounds; (2) sit continuously; (3) stand, walk, and drive frequently; and (4) bend, squat, reach above her shoulder, and kneel occasionally. (Id.)

         Despite Plaintiffs letter enclosing the Checklist, Montagna instructed Plaintiff to not return to work on June 3, 2013. (Id., R. 89, Defs.' Resp. to Pl's SOAMF ¶ 10.) Montagna told Plaintiff that she was not cleared to return to work because "someone in HR thinks you need surgery." (Id., R. 86-5, Keen Oct. 14 Dep. Tr. at 74.) Specifically, Plaintiff understood that someone in Teva's human resources department told Montagna that Plaintiff could not return to work until she underwent the surgery that was previously scheduled for May 17, 2013, but had been cancelled. (Id. at 74-76.) Shortly thereafter, on June 5, Plaintiff called Defendants' compliance hotline and claimed that Defendants discriminated against her on the basis of her disability. (16-cv-9964, R. 28, Answer to Am. Compl. at 5.)

         Defendants denied Plaintiffs return in early June because they had reviewed the Checklist and concluded that there was a lack of clarity and agreement as to Plaintiffs work-related restrictions and necessary accommodations. (14-cv-9626, R. 86-8, Bobrowski Oct. 19 Dep. Tr. at 103-09.) Plaintiffs surgery that was originally scheduled for May 17, 2013, but later cancelled, eventually took place in July 2013. (Id., R. 89, Defs.' Resp. to Pl's SOAMF ¶ 10.) Following the surgery, on August 22, 2013, Plaintiff faxed another Checklist to Teva. (See Id., R. 86-1, Pl's Resp. to Defs.' SOMF ¶ 23.) Teva advised her that, because she had been absent from work for over six months, she needed to complete a "return-to-work" examination. (Id., R. 86-5, Keen Oct. 14 Dep. Tr, at 78.)

         On August 27, 2013, Plaintiff completed that examination. (Id. at 78-79, 85.) Following this examination, Montagna called Plaintiff and told her that there was "a problem" with the results and therefore she requested that Plaintiff undergo a second examination. (Id. at 86-87, ) Specifically, Plaintiff was informed that she had to undergo a second test because the first test found that her neck was normal, but Defendants believed that the test failed to indicate that she had a "scar or something to that effect" on her neck. (Id.) In response, Plaintiff refused to complete a second examination and, shortly thereafter, Plaintiffs then-counsel requested information from Teva as to why a second examination was necessary. (Id. at 86-88.) Even though Plaintiff did not retake the examination, on September 11, 2013, Montagna called Plaintiff and informed her that she could return to work the following day. (Id. at 88.) Plaintiff returned to work on September 12, 2013, and her only work restriction was that she could not lift more than twenty pounds. (Id., R. 89, Defs.' Resp. to Pl's SOAMF ¶ 11; Id., R. 86-5, Keen Oct. 14 Dep. Tr. at 80.)

         IV. Plaintiffs Request to Attend a Training Workshop

         In early 2014, Plaintiff signed up for a training workshop in Pennsylvania scheduled for February 2014. (Id., R. 86-6, Keen Oct. 15 Dep. Tr. at 55-56.) Plaintiff, however, was not approved to attend this workshop because Defendants wanted their sales representatives to focus on having a strong start to their year, and Defendants recommended that Plaintiff wait until later in the year to attend a workshop. (Id. at 56-57.) Another woman on Plaintiffs team, Jonnie Blake, was not approved to go to the workshop either, but Plaintiff knew of three men who were approved. (Id., R. 86-6, Keen Oct. 15 Dep. Tr, at 57-58.) The same number of men and women from Teva, however, attended the Pennsylvania workshop. (Id. , R, 81-6, Bobrowski Aff. ¶ 8.)

         V. The Senior Executive Sales Specialist Position

         While Plaintiff was on leave in 2013 she was notified that her job title had changed from "Territory Sales Specialist" to "Executive Sales Specialist." (Id., R. 86-5, Keen Oct. 14 Dep. Tr. at 89-90.) While at Cephalon, Plaintiff s job title was Territory Sales Specialist, and all sales representatives at Cephalonhad that same title. (Id. at 89, ) After Teva acquired Cephalon, Teva undertook a project to rename Cephalon's job titles to those more consistent with job titles used at Teva. (Id., R. 86-9, Bobrowski Jan. 28 Dep. Tr. at 14-15.) This process involved a review of each sales representative's experience and performance over time to decide how each sales representative's job title would be renamed. (Id. at 14-20.) Plaintiff believes that although she met the qualifications for a "Senior Executive Sales Specialist" ("SESS"), she was instead designated as an Executive Sales Specialist. (Id., R. 86-5, Keen Oct. 14 Dep. Tr. at 90-91.)

         As part of its process to re-categorize each sales representative, Teva established a committee (the "Committee") that included, among other directors of Teva's sales divisions, Muller, director of the sales division for which plaintiff worked. (Id., R. 86-10, Muller Dep. Tr. at 58.) Sales directors, like Muller, would have a discussion with lower-level managers to determine the recommended job title for each employee within that sales director's division. (Id. at 58-59.) Sales directors would then present those recommendations to the Committee for its review. (Id. at 59.) The Committee then considered each employee's sales performance and other factors, and attempted to evaluate each employee in a uniform manner. (Id. at 60-63.) Afterwards, Teva's sales directors voted to approve each employee's job title. (Id. at 61.)

         Within Muller's division, Muller reviewed an evaluation generated by each employee's immediate supervisor that described the employee's characteristics outside of his or her sales performance, such as the employee's leadership and mentorship qualities. (Id. at 64.) In Plaintiffs case, her direct supervisor, Bischoff, completed her evaluation that Muller reviewed in order to determine-together with the other sales directors-her job title. (Id. at 64-65.)

         The Committee could assign one of five positions to each sales representative: (1) Sales Specialist, (2) Professional Sales Specialist, (3) Senior Sales Specialist, (4) Executive Sales Specialist, and (5) SESS. (Id., R. 81-12 at 11-14, Promotional Guidelines.) The qualifications for SESS were:

1. a rating of "meets" or better for two of the last three years, which is a rating indicating that the employee met his or her responsibilities in a given year;
2. a rating of "exceeds" or better for at least one of the last two years, which is a rating indicating that the employee "exceeded" his or her responsibilities in a given year;
3. finishing within the top 30% of Teva's sales representatives in one of the last three years and within the top 50% of Teva's sales representatives in the other two years;
4. working a minimum of three years as a Teva Executive Sales Specialist;
5. more than eleven years[5] of experience working in pharmaceutical sales; and 6. being a "leader, " "mentor, " and "role model."

(Id., R. 81-12 at 11-14, Promotional Guidelines.)

         Plaintiff met the objective qualifications for the SESS position such as sales numbers and years of experience. (See id; see also id., R. 86-1, Pl's SOAMF ¶ 29.) Additionally, Teva's internal evaluation of Plaintiff as part of the Committee's review process shows that she was recommended for the SESS position, (Id., R. 81-10 at 20, Eligibility Criteria Worksheet; see also id., R, 81-10, Muller Dep. Tr. at 53-54.) Despite this recommendation, Plaintiff was ultimately designated as an Executive Sales Specialist. (Id., R. 86-5, Keen Oct. 14 Dep. Tr, at 90-91.)

         Multiple Teva employees testified that Plaintiff did not receive the SESS position because she was not considered a role model or leader. For example, Plaintiffs supervisor prior to 2011, Stanek, testified that Plaintiff "always did well on the sales performance, " but it was "well-documented" that "she was not executing against behaviors that the company held as standards." (Id., R. 86-16, Stanek Dep. Tr. at 29-30.) During the employee reclassification process, Muller asked Bischoff about examples of Plaintiff being a leader, mentor, or role model, and Bischoff "did not have any examples to speak to." (Id., R. 86-12, Bischoff Dep. Tr. at 23.) Instead, Bischoff spoke to Plaintiffs "lack of leadership, her lack of mentor ship, her lack of initiative, her lack of role modeling, lack of collaboration, and her lack of followership." (Id.) Bischoff also gave Muller examples to support his observations about Plaintiff. (Id. at 23-24.)

         While largely positive, some of Plaintiff s written reviews included similar criticisms. Plaintiffs 2010 Cephalon review lauded her for her sales numbers, clinical and product knowledge, customer knowledge, and stated that Plaintiffs "leadership and ability to adapt to a changed environment is appreciated by her manager." (Id., R. 86-16 at 53-56, 2010 Performance Summ.) The review, however, also stated that Plaintiff did not meet expectations regarding targeting customers with the greatest sales potential and that her "failure to show improvement planning and organizing over the past 9 month[s] speaks to an unwillingness to adopt and implement change when she does not agree with corporate goals and strategies." (Id. at 55.)

         Plaintiffs 2011 Abbreviated Performance Summary was almost entirely positive, noting that she was on pace to exceed her sales quota, she had earned a "President's Club rank, " and her knowledge of the product was "superior." (Id., R. 86-16 at 57-58, Abbreviated Performance Summ.) The review did note that she was on a medical leave for some of 2011, but "[w]hile in territory she did not meet expressed call expectations." (Id.) Specifically, it stated that Plaintiff "was consistently behind the Nation, Region and team call averages throughout each evaluation period." (Id.) Despite this critique, the summary concluded that Plaintiff was "consistently a top performer[] in the organization[.]" (Id.)

         On October 31, 2013, Plaintiff met with Muller and Rothweiler to discuss her 2012 performance review and the reasons why she was not selected for the SESS position. (Id., R. 86-1, Pl's Resp. to Defs.' SOMF ¶ 35.) The results of Plaintiff s 2012 Mid-Year Performance Review-which was completed by Rothweiler's predecessor, Bischoff-were distinctly lower than prior years. (Id., R. 81-7 at 60-65, 2012 Mid-Year Performance Review.) The review had performance categories of: "Below, " "Mostly Meets, " "Meets, " "Exceeds, " and "Exceptional." (Id.) Plaintiff did not receive any "Exceeds" or "Exceptional" in any individual category and her overall evaluation was "Mostly Meets." (Id. at 60-64.) In a section assessing Plaintiffs "Strengths and Needs, " Bischoff did not list any "Strengths, " (Id. at 64.) As to Plaintiffs "Needs, " Bischoff wrote that Plaintiff: "needs to improve her time and territory management" because "her calls per day are among the lowest in the area;" "should increase her overall activity in line with area and regional averages;" "should be more proactive in completing administrative requirements" including "expense reports;" and "could benefit from increased resource utilization." (Id.)

         At the meeting with Muller and Rothweiler on October 31, 2013, Muller informed Plaintiff that although she met all of the objective criteria to qualify for the SESS position, she was not sufficiently a leader, mentor, or role model to merit the SESS position. (Id. at 109; Id., R. 86-10, Muller Dep. Tr. at 109-10.) To refute this, Plaintiff points out that in September 2011, Stanek emailed Muller, Reiily, and Plaintiff comparing her to Lou Holtz, a former coach of the University of Notre Dame's football team, and wrote: "Over the past several years you've been our Lou Holt[z], an inspiration to so many at Cephalon including myself, and we are so proud of you! Like him, you are in a league of your own!" (Id., R. 86-16 at 59-62, Stanek Sept. 9, 2011, Email.)

         Plaintiff asserts that the actual reason behind Teva's decision not to promote her to the SESS position was because of her disability and gender. To support these allegations, Plaintiff points to a number of facts. Plaintiff testified that Muller told her that she had not actively participated in meetings and that she had missed meetings. (Id., R. 86-5, Keen Oct. 14 Dep. Tr.

         at 109, 115.) Plaintiff also notes that on November 14, 2012, she emailed Bischoff about her performance reviews, stating that her "challenge" at work "is obvious with [her] medical leave and .. . need for accommodations[.]" (Id., R 86-12 at 16, Bischoff Nov. 14, 2012, Email.) In response, Bischoff wrote:

Your medical limitations and leave of absence have had a significant impact on your ability to perform this year at a high level but that shouldn't detract you from returning to President's club in 2013! I think next year you will be in a much better position to succeed while documenting competencies along the way. I am confident you will return to a top performing sales executive.

(Id.)

         Plaintiff also claims that there were "many men, with no disability, without the qualifications" that were promoted to the SESS position. (Id., R. 89, Defs.' Resp. to Pl's SOAMF at 10.) In support, Plaintiff identifies six men who "did not have all [of] the required qualifications .. . but were nonetheless promoted to the position, without any interview." (Id. ¶ 24.) No. individual directly reporting to Bischoff, however, "was qualified for the SESS position." (Id., R. 86-1, Pl's Resp. to Defs.5 SOMF ¶ 34.)

         VI. Plaintiffs 2013 Bonus and Salary

         Plaintiffs 2013 bonus payments were approximately $12, 000 less than what she was expecting. (Id., R. 86-7, Keen May 24 Aff ¶¶ 7-9.) Plaintiff asked Rothweiler why her bonus had been reduced in 2013, and Rothweiler told her that the bonus was reduced because she was out of her territory for most of the year. (Id., R. 86-6, Keen Oct. 15 Dep. Tr. at 10-11.) Plaintiff, however, also testified that her bonus was reduced because Teva prohibited her from returning to work in June 2013 and did not allow her to return until September 2013. (Id. at 11.)

         Bonuses at Teva are calculated "based on performance measured by sales of the representative's territory" and are paid every three months. (Id., R. 89, Defs.' Resp. to Pl's SOAMF ¶ 29.) Teva's 2013 Annual Incentive Plan states in relevant part, "[l]eaves of absence will impact incentive eligibility in proportion to the length of the leave, with the exception of an approved leave that qualifies under FMLA, the Parental Leave Policy and/or the Military Leave Policy." (Id., R. 81-6 at 10, Annual Incentive Plan.)

         VII. Plaintiffs Leave in 2014 and Performance Following Her Return to Work

         In January 2014, Plaintiff reinjured her shoulder while attempting to refill her car's windshield wiper fluid. (Id., R. 86-6, Keen Oct. 15 Dep. Tr. at 12-17.) Following her injury, Plaintiff continued to work from January 29, 2014, until March 12, 2014. (Id., R. 86-1, Pl's Resp. to Defs.' SOMF ¶ 44.) Plaintiff filed a workers' compensation claim with the IWCC for this injury. (16-cv-9964, R. 41-2 at 85, Workers' Comp. Claims.) Plaintiff did not go on medical leave immediately following the injury because she "had not yet qualified for family medical leave, " and "needed job-protected leave[.]" (14-cv-9626, R. 86-1, Pl's Resp. to Defs.' SOMF ¶ 44.) Plaintiff eventually went on FMLA leave, and while on leave, Plaintiff had another surgery on her spine in March 2014 and a surgery to repair her rotator cuff on May 15, 2014. (Id. ¶¶ 45-46.) On June 2, 2014-the day before Plaintiffs FMLA leave was set to expire-Plaintiff sent an email requesting two additional months of leave as an ADA accommodation. (Id., R. 86-6, Keen Oct. 15 Dep. Tr. at 23-27.) Defendants agreed to the extension, and Plaintiff returned to work on August 7, 2014. (Id., R. 86-1, Pl's Resp. to Defs.' SOMF ¶¶ 46-47; see also Id., K. 81-11 at 54, Bobrowski June 10, 2014, Letter.) Teva's letter extending Plaintiffs leave, however, stated that her territory was "not being managed by an active sales representative" because of Plaintiffs "extended absences, " and also stated that "any requests for additional extended leaves will be closely scrutinized as Tevamust have an active representative within [Plaintiffs] tenitory[.]" (Id., R. 81-11 at 54, Bobrowski June 10, 2014, Letter.)

         Upon Plaintiffs return to work in August 2014, Rothweiler remained Plaintiffs supervisor, (id., R. 86-6, Keen Oct. 15 Dep. Tr. at 23), and the two met to discuss her performance expectations for the rest of the year, (id., R. 81-14, Rothweiler Aff. ¶ 2). As part of these expectations, Plaintiff was provided a "call list, " which "assigned a certain number of [sales] calls over the course of the year[.]" (Id., R. 86-6, Keen Oct. 15 Dep. Tr. at 48.) Included in this call list were physicians in Plaintiffs Indiana territory that were identified as "high decile prescribers, " or those doctors that could be encouraged to prescribe more Teva products. (Id.) Plaintiff claims that the list that Rothweiler created for her was misguided because many of the targets were "retired" or not in her territory, and the suggested call volume did not account for the time she was on medical leave. (Id. at 49; see also id., R. 86-7, Keen May 24 Aff. ¶ 31.) Following the meeting, Plaintiff also "repeatedly complained to .. . Rothweiler regarding unusual challenges related to [her] leave that affected [her] ability to do [her] job, " such as the "inability to access corporate websites, " "inconsistencies with data, " "problems accessing a case manager, " issues with her medical care, and "issues concerning [her] corporate" credit card. (Id., R. 86-7, Keen May 24 Aff. ¶ 30.)

         In November 2014, Rothweiler accompanied Plaintiff on a two-day field visit. (Id., R. 81-14, Rothweiler Aff. ¶¶ 3-4.) Per Teva's practices, Rothweiler prepared a field coaching report ("FCR") following the field visit. (Id. ¶ 4.) The FCR provided both positive and negative comments regarding Plaintiffs "business acumen." (Id., R. 81-14 at 6, FCR.) For example, the review stated that Plaintiff engaged in "good discussion" with physicians and "did a nice job of gaining commitment with .. . physicians to prescribe our products, " (Id. at 8.) The FCR, however, discussed the fact that Plaintiff did not make sales calls to Indiana, stating that "[o]verall 30% of [Plaintiff's] business comes from Indiana, however only 2% of [her] time has been spent there." (Id. at 6.) The FCR also concluded that Plaintiff did not exercise a "sound strategy" for sales, and was making very few sales calls in the morning hours. (Id. at 6, 10.)

         Plaintiffs morning absences were due to physical therapy appointments she attended once or twice a week, regular doctor's appointments, and a daily "morning exercise program." (Id., R. 86-1, Pl's Resp. to Defs.' SOMF ¶¶ 50-51.) These obligations caused Plaintiff to delay the start of her work day or caused her to miss one to two mornings of work every week. (Id., R, 86-6, Keen Oct, 15 Dep. Tr. at 34, 37.) She testified, however, that Rothweiler approved these accommodations. (Id.)

         VIII. The 2014 "Make It Happen" Sales Contest

         While Plaintiff was on leave in 2014, a sales contest took place at Teva that it branded as the "Make It Happen" sales contest. (Id., R. 86-1, Pl's Resp. to Defs.' SOMF ¶ 73.) Initially, Plaintiff was listed as not being eligible to participate in the contest. (Id.) Jeffery Schurr, a senior manager of incentive compensation at Teva, categorized Plaintiff as ineligible because he was informed by Bobrowski that Plaintiff was "on a leave that was bonus ineligible." (Id., R. 86-15, Schurr Dep. Tr. at 18.) On June 25, 2014, after seeing an email listing her as ineligible to participate, Plaintiff emailed Rothweiler to explain that she was in fact eligible to participate in the contest. (Id., R. 81-11 at 70, Keen June 25, 2014, Email.) Five days later, on June 30, 2014, Rothweiler notified Plaintiff that she was eligible to participate in the contest and would be receiving credit for it. (Id., R. 81-11 at 70, Rothweiler June 30, 2014, Email.)

         Plaintiff testified that in the days following the error and before Teva corrected the error, she suffered "great humiliation and embarrassment from the incorrect results from the contest and received calls from many colleagues asking what was wrong with her or if she was on a performance improvement plan." (Id., R. 86-6, Keen Oct. 15 Dep. Tr. at 72-76, 82-83.) Even though Plaintiff was informed that she was in fact eligible to participate in the contest, Teva did not correct the "humiliating e-mail that was sent out by the vice president" announcing that Plaintiff was ineligible, (Id. at 73.) Plaintiff, however, did participate in the contest and was paid as one of the winners of the contest. (Id. at 76.)

         IX. Plaintiffs Request for a Sales Territory Accommodation

         After her return in August 2014, Plaintiff made repeated requests to her supervisors and Teva's human resources department to modify her sales territory. (Id., R. 86-1, Pl's Resp. to Defs.' SOMF ¶ 55.) In November 2014, Plaintiff requested that Defendants accommodate her medical condition by removing Indiana from her territory. (Id. ¶¶ 54-55; see also Id., R. 81-11 at 73-74, Keen Nov. 20, 2014, Email.) In response, Rothweiler asked if she made a "reasonable accommodations request to anyone in the organization" and, if not, Rothweiler encouraged her to do so. (Id., R. 81-11 at 73-74, Keen Nov. 20, 2014, Email.) Plaintiff replied that before she made a reasonable accommodations request, she wanted to specifically know if "sales management would consider such a request, " because it would be pointless to request an accommodation if her superiors would not approve it. (Id.)

         In December 2014 and January 2015, Plaintiff renewed her territory modification request. (Id., R. 81-9 at 10-11, Keen Dec. 15, 2014, Email; see also Id. at 13-14, Keen Jan. 16, 2015, Email.) Plaintiffs request was being considered during this timeframe, and both the sales operations and human resources departments were involved in reviewing Plaintiffs request. (Id., R. 81-9, Rothweiler Dep, Tr. at 25-26; see also Id., R. 81-9 at 13-14, Keen Jan. 16, 2015, Email.)

         Plaintiff was instructed to speak with Elaine McGee regarding her territory modification request who, in turn, directed Plaintiff to contact Work Care, an occupational health management company that Teva contracted with to handle "return to work and/or reasonable accommodation issues for Teva employees." (Id., R. 86-6, Keen Oct. 15 Dep. Tr, at 135-36.) Plaintiff had prior confrontational experiences with a Work Care account manager, and Dr. Peter Greaney, Work Care's founder and chief executive officer, was advised that Plaintiff was "quite argumentative" and "had initially refused to sign" Work Care's standard Health Insurance Portability and Accountability Act ("HIPAA") release form. (Id., R. 81-15, Greaney Aff. ¶¶ 1, 4.) Specifically, Plaintiff: had "blacked out" portions of Work Care's standard HIPAA form that it used to obtain an employee's medical information; was not willing to release medical information; and took issue with the fact that Work Care would need to talk to her health care providers. (Id. ¶ 4.) The "matter was escalated" to Dr. Greaney, who called Plaintiff in April 2015 to seek more clarity on her requests for accommodations. (Id. ¶ 5.) Plaintiff was "rude, loud, and argumentative during the course of the call, " and also told him "that a clinical clarification was not required." (Id.; see also Id. at 5, April 3, 2015, Email; id., R. 86-1, Pl's Resp. to DetV SOMF ¶ 59.) After repeated warnings, Dr. Greaney "reluctantly terminated the call." (Id., R. 81-15, Greaney Aff ¶ 5.) Plaintiff testified that after Dr. Greaney "hung up" on her, she felt "helpless" and humiliated. (Id., R. 86-6, Keen Oct. 15 Dep. Tr. at 187-88.) Despite this exchange with Dr. Greaney, Plaintiff provided Work Care with her recent surgical reports and documents that she believed demonstrated her need for a reasonable accommodation. (See Id., R. 86-6, Keen Oct. 15 Dep. Tr. at 136-138.) There is no indication, however, that these reports made any reference to the fact that her territory needed to be realigned to accommodate her medical needs. (See id.)

         While Plaintiff had conversations with at least two of her doctors regarding changing her sales territory to accommodate her medical condition, (Id., R. 86-6, Keen Oct. 15 Dep. Tr. at 129, 132), there is no evidence that any of Plaintiff s doctors, as opposed to Plaintiff herself, directly communicated with anyone at Teva or Work Care regarding this accommodation. (See id., R. 86-1, Pl's Resp. to Defs.' SOMF ¶ 57 (failing to dispute Defendants' assertion that no doctor specifically restricted Plaintiff); Id., R. 86-6, Keen Oct. 15 Dep. Tr. at 133-34 ("Q. What did Dr. Javed say about driving in Indiana? ... A. He supported my efforts to continue pursuing that accommodation. Q. And did he do that in writing? A. No. I didn't ask him to.").) Ultimately, Teva denied Plaintiffs request for a sales territory modification. (Id., R. 86-1, Pl's Resp. to Defs.' SOMF ¶ 57.) Notably, Dr. Greaney stated that he did not deny her request for an accommodation, and instead "requested information necessary for clinical clarification which [Plaintiff] refused to provide." (Id., R. 81-15, Greaney Aff. ¶ 6.)

         X. Plaintiffs 2014 Performance Review and Subsequent Rebuttal

         Plaintiff received her 2014 performance review in February 2015. (Id., R. 86-1, Pl's Resp. to Defs.' SOMF ¶ 63.) The ratings categories were "Below, " "Mostly Meets, " "Meets, " "Exceeds, " and "Exceptional." (Id.) Plaintiffs overall evaluation was "Mostly Meets, " and her overall sales ranking was 233 out of 254. (Id., R. 81-11 at 76-79, Performance Mgmt. Full Report.) Her manager's comments in the report, who was Rothweiler, included the following:

• "[Plaitniff] did not provide . .. any developmental goals in 2014."
• While Plaintiff requested to attend a "selling skills class" in the first quarter of 2014 and that request was denied, Plaintiff "did not request another class upon her return to the field in August."
• "[S]he will need to take a more proactive approach ... to administrative tasks, resource utilization, and communications around business issues in her territory."
• "[Plaintiff] has not demonstrated a leadership role on the team in 2014."
• "[Plaintiff] has not been able to adequately meet an appropriate level of call activity on the customers that have the greatest impact on her business."
• "[Plaintiff] did not submit any expense reports for 2014 until December."
• Plaintiff "did not spend time in the Indiana portion of her territory ... that accounts for approximately 30% of her Nuvigil business."
• "She did not follow her call plan to effectively reach the most valued customers[.]"

(Id. at 77-79.) Plaintiff disagreed with the majority of these remarks as "fundamentally flawed" and responded with a document titled "2014 Keen Performance Review Rebuttal." (Id. at 80; see also Id., R. 86-6 at 52-64, Keen Rebuttal.)

         In her rebuttal, Plaintiff described the comments in her 2014 performance review as "false and misleading[.]" (Id., R. 86-6 at 52, Keen Rebuttal.) She blamed her negative reviews on Teva's failure to follow ...


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