United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Castillo, United States District Court Chief Judge
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.) 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. (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.
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.
The Parties and Plaintiffs Supervisors
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.)
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.
Plaintiffs Leaves of Absence in 2010-2012
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.)
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.)
Plaintiffs Leave and Return to Work in
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
(Id., R 81-12 at 18, May 23, 2013, Bobrowski
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.)
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.)
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.)
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.
Plaintiffs Request to Attend a Training Workshop
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.)
The Senior Executive Sales Specialist Position
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.)
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.)
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.)
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
4. working a minimum of three years as a Teva Executive Sales
5. more than eleven years of experience working in pharmaceutical
sales; and 6. being a "leader, " "mentor,
" and "role model."
(Id., R. 81-12 at 11-14, Promotional Guidelines.)
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.)
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.)
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.)
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.)
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.)
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.)
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.
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.
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.)
Plaintiffs 2013 Bonus and Salary
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.)
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.)
Plaintiffs Leave in 2014 and Performance Following Her Return
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.)
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. ¶
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.)
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.
The 2014 "Make It Happen" Sales Contest
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,
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.)
Plaintiffs Request for a Sales Territory
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.)
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.)
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.)
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.)
Plaintiffs 2014 Performance Review and Subsequent
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
• "[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.)
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 ...