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Downing v. Abbott Laboratories

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

September 5, 2019




         Plaintiff Jacinta Downing filed this suit against her employer, Abbott Molecular, Inc., alleging that it violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. by discriminating against her because of her race and sex and retaliating against her for voicing her complaints about that conduct. Abbott has moved for summary judgment; for her part, Downing has moved to strike portions of declarations submitted by Abbott in support of its motion. For the reasons discussed below, Downing's motion to strike is denied in large part and granted in part. Abbott's motion for summary judgment, on the other hand, is granted in small part but largely denied because the record in this case is replete with material fact disputes.[1]


         Jacinta Downing began working for Abbott Molecular, Inc., a subsidiary of Abbott Laboratories, in 2003.[2] Defendants' Statement of Facts (“DSOF”) ¶ 3, ECF No. 212. After six years as a Molecular Area Sales Manager, Downing transitioned into the role of Regional Sales Manager in 2009, which reported directly to the Division Vice President of Americas, Mark Bridgman. As one of five regional managers, Downing supervised a team of sales representatives who were charged with selling healthcare products to hospitals, commercial laboratories, and clinics. Id. ¶¶ 2, 6. Between 2004 and 2012, Downing received “Achieved Expectations” or “Exceeded Expectations” in her overall annual performance ratings. Plaintiffs' Corrected Statement of Facts (“PSOF”) ¶ 2, ECF No. 237.

         In 2011, the company began experiencing financial distress and decided to restructure its management hierarchy in response. DSOF ¶ 8. First, Bridgman terminated one of the regional managers, a white male (“M.M.”), leaving Downing (an African-American woman), C.J. (an African-American woman), M.K. (a white man), and J.G. (a white woman).[3] Then, Abbott executives added a layer of management between the regional managers and Bridgman by hiring Peter Farmakis (a white man) into a new “National Sales Director” role in October 2012. Id. ¶ 13. As National Sales Director, Farmakis directly supervised the regional managers; the managers no longer reported directly to Bridgman.

         It is Abbott's position that Farmakis immediately noticed problems with Downing's job performance, a fact which is hotly disputed and discussed in more detail below. It is Downing's position that Farmakis was unfairly targeting her. In July 2013, Downing complained to Employee Relations about Farmakis, alleging that he was discriminating against her because of her race. PSOF ¶ 8. According to Downing, she provided several examples of Farmakis favoring M.K., the white male regional sales manager, and complained of an incident in which she and C.J. (the only black managers) were required to “pick up the slack” for the other two poorer performing white managers. Id. In response, Employee Relations Specialist Colleen Plettinck conducted a “climate survey” in August 2013 regarding Peter Farmakis during which she interviewed the four regional managers. DSOF ¶ 72. The results of the survey were mixed. Downing, C.J., and J.G. (the three female managers) reported that they “strongly disagreed” with the statement that Farmakis treated people in the group equally. M.K., the only male manager, reported that he felt that Farmakis did treat people equally. Pl.'s Exs. 39-42, ECF No. 213. J.G. also reported that Farmakis was “especially hard on Jay [Jacinta]” despite the fact that “her numbers [were] good.” Pl.'s Ex. 42. Downing reported that, earlier in the month, Farmakis had made a comment along the lines of “did you hear about the dress code, no hoodies, ” which Downing perceived as racist in light of the Trayvon Martin shooting incident. PSOF ¶ 9. Abbott maintains that the survey results led Sarah Longoria, Director of Business Human Relations, to believe that Farmakis needed coaching regarding his management style but that his behavior was not discriminatory.[4] DSOF ¶ 72. The results of the survey were eventually summarized and shared with Farmakis in late September 2013.

         In October 2013, Farmakis placed both Downing and J.G. on “coaching plans” because of their alleged performance issues. Id. ¶ 41. According to Downing, J.G. was the lowest sales performer but had not faced any disciplinary action until this time. Shortly thereafter, J.G. took early retirement and was replaced by P.R., a white woman, at the end of 2013. Id. ¶ 12. Then, in January 2014, after Downing had earned the sales manager of the year award based on her sales performance, PSOF ¶ 17, Farmakis escalated Downing's coaching plan to a formal 60-day Performance Improvement Plan (“PIP”) which was written and reviewed by Employee Relations Specialist Sharon Larson and Sarah Longoria. DSOF ¶¶ 44, 45. The PIP laid out various areas for improvement and expectations and explained that failure to meet those expectations would result “in a review for termination.” Defs.' Ex. 40, ECF No. 167-30. Abbott does not contend that Farmakis had cause to initiate a termination review based on the PIP. On September 9, 2014, Downing filed a complaint with the EEOC alleging that Farmakis had discriminated against her because of her race by subjecting her to a hostile work environment and retaliated against her by placing her on the coaching plan and PIP. Defs.' Ex. 66, ECF No. 167-50.

         At some point while this was happening, Abbott management began discussing the need for a company wide reduction in force (“RIF”) to combat the ongoing sales slump. Downing maintains that discussions about a RIF began as early as October 2013; Abbott maintains they began in September 2014. DSOF ¶ 48. Regardless, Abbott executed the RIF in January 2015. Prior to doing so, Keith Chaitoff replaced Mark Bridgman as Division VP of the Americas. Id. ¶ 49. Although there is some dispute as to who had ultimate decision-making power with respect to the RIF, it is undisputed that Chaitoff and Sarah Longoria worked together to determine which U.S. commercial leadership positions would be eliminated. Id. Ultimately, Abbott terminated 42 employees around the globe, including all four regional sales managers (Downing, C.J., M.K., and P.R.) as well as Peter Farmakis. Id. ¶ 52.[5]

         Following the RIF, Abbott created four new positions under the title of “Regional Commercial Director.” Id. ¶ 53. Abbott maintains that this position differed from the previous regional manager position in several ways; Downing states that the positions were materially the same. Id. ¶ 54. The parties also advance different descriptions of the director hiring process. Abbott states that it started its search internally, and that candidates were interviewed by a three-member panel comprised of Keith Chaitoff, Sarah Longoria, and Dave Skul (former Senior Director of Enterprise Accounts) and graded on a set of objective criteria. According to Abbott, Chaitoff was the primary decision maker and Longoria and Skul acted in an advisory capacity. Id. ¶ 54. Downing contends that Chaitoff and Longoria had equal responsibility and the interview process was a sham; she maintains that Chaitoff and Longoria had pre-selected the candidates they intended to hire. PSOF ¶ 25. In any case, Downing interviewed for the director position but was not hired. Instead, Abbott extended offers to P.R. (a white woman and one of the regional managers whose position had been eliminated), Paul Kuznik (a white man formerly employed by Abbott), Jim Menges (a white man employed at Abbott in a different role), and Julee MacGibbon (a white woman whose position at Abbott had been eliminated during the RIF).[6] DSOF ¶ 62. Kuznik, however, declined the offer. In March 2015, Longoria learned that Downing would not sign a severance agreement and that Abbott was at risk of being sued for discrimination. PSOF ¶ 29. Shortly thereafter, Abbott filled the fourth director position with E.B., an external (black male) candidate. Id.

         Downing filed an amended complaint with the EEOC in May 2015 alleging that Abbott had retaliated against her for filing her previous EEOC charge and discriminated against her on the basis of race and sex by terminating her and failing to re-hire her. In July 2015, Downing filed suit against Abbott in this district asserting her earlier claim that Abbott retaliated and discriminated against her on the basis of race by placing her on performance improvement plans. Then, after exhausting her administrative remedies for the May 2015 EEOC charge, she amended her complaint in December 2015 to add the claim pertaining to her termination.[7] The parties subsequently engaged in more than two years of discovery, after which Abbott filed a motion for summary judgment and Downing filed a motion to strike several of the exhibits Abbott submitted in support of its motion. Even considering most of the evidence Downing seeks to strike, a jury could reasonably infer that Farmakis discriminated and retaliated against Downing by giving her negative reviews and placing her on a coaching plan and PIP, and that this proximately caused Downing's ultimate separation from the company. Accordingly, summary judgment on those claims is denied. Downing has failed to adequately establish, however, that the director hiring process had a disparate impact on African-Americans, so summary judgment as to that claim is granted.


         I. Plaintiffs Motion to Strike

         Before turning to the merits of the summary judgment motion, the Court considers Downing's motion to strike as inadmissible portions of exhibits submitted by Abbott. See Baines v. Walgreen Co., 863 F.3d 656, 662 (7th Cir. 2017) (“Evidence offered at summary judgment must be admissible to the same extent as at trial, at least if the opposing party objects, except that testimony can be presented in the form of affidavits or transcripts of sworn testimony rather than in person.”).[8] For the reasons discussed below, that motion is granted in part and denied in part.

         A. Hearsay

         Downing argues that Peter Farmakis's declaration includes inadmissible hearsay. For example, Downing challenges:

• Farmakis's statement that he “received phone calls from a consultant . . . [who] lodged complaints regarding Downing's communication style, and requested that [Farmakis] instruct Downing not to call him anymore because she had an abrasive approach”;

• Farmakis's statement that Downing's colleagues “expressed concern about Downing's behavior in front of customers”; and

• Farmakis's statement that one of Downing's direct reports said that “she believed Downing interfered with the strong relationships [the report] had established with customers.”

Defs.' Ex. 31 Declaration of Peter Farmakis ¶ 6, ECF No. 177-1.

         Federal Rule of Evidence 801(c) defines hearsay as an out of court statement offered into evidence “to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c). But the out of court statements that Downing challenges-that a colleague said this or a customer said that-are not offered for their truth. In other words, Abbott does not offer Farmakis's testimony to show that Downing did in fact have an abrasive approach or behave poorly in front of customers, but rather to show that Farmakis received complaints about Downing and that the complaints affected his belief about her abilities. See Atkinson v. SG Americas Sec., LLC, 14 CV 9923, 2016 WL 7188163, at *7 n.2 (N.D. Ill.Dec. 12, 2016), aff'd, 693 Fed.Appx. 436 (7th Cir. 2017) (complaints about an employee are not hearsay when they are offered to show that an employer received complaints rather than for their truth); see also Luckie v. Ameritech Corp., 389 F.3d 708, 716 (7th Cir. 2004) (complaint made to supervisor not hearsay when offered to show supervisor's state of mind at the time she was evaluating employee's performance); Alexander v. Cit Tech. Fin. Services, Inc., 217 F.Supp.2d 867, 881 (N.D. Ill. 2002) (complaint about employee admissible to show a basis for employer's belief that employee was rude with customers).[9] These statements are therefore not hearsay and need not be stricken.[10]

         B. Personal Knowledge

         Downing fares better with her challenge to Farmakis's statements that he “learned” that Downing gave one customer free training and communicated unapproved pricing to another. Critically, Farmakis does not explain how he learned those things, and that violates Federal Rule of Civil Procedure 56(c)(4)'s instruction that a declaration used to support a motion “must be made on personal knowledge.” See Watson v. Lithonia Lighting, 304 F.3d 749, 752 (7th Cir. 2002) (witness's affidavit stating that she “learned” something about two employees did not establish personal knowledge because it did not explain how she learned of the fact in question); see also Rabin v. Provident Life & Acc. Ins. Co., 98 C 1577, 2000 WL 1131944, at *7 (N.D. Ill. Aug. 9, 2000) (“In her affidavit, Rabin has not shown personal knowledge because there is no foundation for her general assertions that she ‘learned' certain things.”).[11]

         Downing's remaining objections, however, do not suffer from the same flaw. For example, Matthew Gaulden and Brian Witajewski (who state in their declarations that Downing was their direct supervisor) testify to observing Downing's interactions with customers and traveling with her on sales calls. See Defs.' Ex. 32 Gaulden Declaration, ECF No. 167-25; Defs.' Ex. 59 Witajewski Declaration, ECF No. 167-45. That these witnesses do not specify the exact products about which Downing lacked knowledge, the exact dates of various customer interactions, or the exact words used by Downing in these customer interactions may go to the weight of the evidence (which is not for this Court to consider), but it does not mean that they lack personal knowledge of the events described. Similarly, the fact that neither Keith Chaitoff nor David Skul state that they personally interviewed E.B. (the individual ultimately selected for a director position post-RIF) does not suggest that they lack personal knowledge about his qualifications; indeed, their representations that they participated in the hiring process suggests the opposite. See Defs.' Ex. 39 Declaration of Dave Skul ¶ 10, ECF No. 167-29; Defs.' Ex. 41 Declaration of Keith Chaitoff ¶ 11, ECF No. 167-31.

         C. Contradictory Statement

         Finally, Downing argues that Longoria's statement that Chaitoff was the primary decision maker in the director hiring process (and that she and Skul participated in the process solely in advisory roles) should be stricken because it contradicts her prior deposition testimony, where she stated that she and Chaitoff were “the decision-makers responsible.” Pl.'s Ex. 9 Longoria Deposition 443:18-19, ECF No. 213-9. This inconsistency is not egregious, and need not be stricken from the record. See Castro v. DeVry Univ., Inc., 786 F.3d 559, 572 (7th Cir. 2015) (explaining that an affidavit should be excluded as a “sham” to thwart summary judgment only where the witness has given clear answers to unambiguous questions in a previous deposition which negate the existence of any genuine issue of material fact). To the extent that it is relevant, however, the Court will credit Longoria's deposition testimony (which suggests that she shared equal responsibility in selecting the new directors) instead of her declaration (which downplays her role). See Preddie v. Bartholomew Consol. Sch. Corp., 799 F.3d 806, 809 (7th Cir. 2015) (district court may decline to consider statements in a witness's affidavit that are inconsistent with the witness's deposition testimony). This is less of an argument for striking that portion of the declaration, however, than it is for complying with the standard that already applies: courts ruling on motions for summary judgment must construe all facts in favor of the nonmoving party and take care not to weigh any conflicting evidence. Omnicare, Inc. v. UnitedHealth Group, Inc., 629 F.3d 697, 705 (7th Cir. 2011).

         Downing's motion to strike is therefore denied in large part; it is granted only with respect to Farmakis's statements that he “learned” that Downing gave one customer free training and communicated unapproved pricing to another.

         II. Defendants' Motion for Summary Judgment

         Moving on to Abbott's motion for summary judgment, the court reiterates that Downing appears to advance two primary claims: 1) that Farmakis retaliated against Downing for lodging a complaint against him and discriminated against Downing based on race by giving her negative reviews and placing her on a coaching plan/PIP and 2) that Abbott (i.e., Longoria and Chaitoff) further retaliated against her and discriminated against her by terminating her and failing to re-hire her after the RIF.[12]

         Summary judgment is warranted on these claims if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In this case, then, the relevant inquiry is whether the evidence, taken as a whole, would permit a reasonable jury to conclude that the challenged employment actions were motivated by Downing's race or were taken in retaliation for her complaints of discrimination. Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016); see also Lauth v. Covance, Inc., 863 F.3d 708, 716 (7th Cir. 2017) (applying Ortiz to retaliation claims).[13]

         To that point, a plaintiff may prove employment discrimination simply by setting forth sufficient evidence, either direct or circumstantial, that the employer's discriminatory or retaliatory animus caused the adverse employment action, but he or she may also use the burden-shifting method established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). McKinney v. Office of Sheriff of Whitley County, 866 F.3d 803, 807 (7th Cir. 2017). Downing focuses primarily on the former method, so the Court proceeds accordingly.[14]

         A. ...

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