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March 17, 2004.

DONNA JONES, Plaintiff,

The opinion of the court was delivered by: THOMAS McAVOY, District Judge



  Plaintiff Donna Jones ("Plaintiff") commenced the instant action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), and the New York Human Rights Law, N.Y. Exec. Law § 296 ("HRL"), arising out of her employment with Defendant Smithkline Beecham Corporation d/b/a Glaxo Smith Kline ("GSK"). Currently Page 2 before the Court is Defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56 seeking dismissal of the Complaint in its entirety. Plaintiff has cross-moved for leave to file an amended complaint alleging a claim of constructive discharge. This latter motion was initially referred to the assigned magistrate judge for resolution, but is addressed herein.


  Defendant is in the business of developing, manufacturing and selling prescription pharmaceutical and biologic products and consumer healthcare products. In 1989, Plaintiff began working for Defendant as a sales representative.*fn1 At the time she was hired, Plaintiff was 43 years of age. For the first nine years of Plaintiff's employment with Defendant, Defendant employed two types of sales representatives — (1) hospital representatives; and (2) field representatives. Hospital representatives targeted hospitals and physicians within the hospitals. Field representatives focused on non-institutional buyers, such as private physicians. In her position, Plaintiff primarily sold to teaching hospitals in the Albany and Cooperstown, New York areas.

  In approximately April 1993, Plaintiff's then supervisor, Richard Jeffries, accompanied her on certain sales call. Jeffries disapproved of certain of Plaintiff's tactics, which he stated could cause a client to feel uncomfortable. Specifically, Jeffries believed that Plaintiff was standing too close to the physician. Accordingly, Jeffries issued a set of written objectives for Plaintiff to meet. Plaintiff denies that she acted inappropriately.*fn2 In support of Page 3 her claim, Plaintiff submits the affidavit of the physician to whom she was selling. The physician states that he did not find Plaintiff to have acted inappropriately in any way.

  Jeffries also claimed to have received several complaints regarding some of Plaintiff's behavior while on sales calls. Def.'s SMF at ¶¶ 20-22. Such behavior included lecturing customers on AIDS,*fn3 failing to use company sales tactics, using unprofessional language in the vicinity of medical staff and patients, using religious expressions with customers, encouraging clients to listen to certain religious radio stations, and failing to comply with the company's call reporting procedures and other company policies. See id; Schwartz Aff. at Ex. 1. Accordingly, Jeffries issued Plaintiff a written warning and placed her on a sixty-day probation period, Id.*fn4 Page 4

  In December 1993, Plaintiff contacted an attorney who wrote a letter to Defendant claiming that Jeffries' treatment of Plaintiff was a form of gender-based discrimination. Jones Aff. at ¶ 14. In early 1994, Plaintiff was reassigned to another district manager. Id. at ¶ 15.

  In 1997, a work conflict developed between Plaintiff and a sales representative from another district, Kelly Fisher. Id. at ¶ 17. Plaintiff believed that Fisher was calling on accounts in Plaintiff's territory. Id. Plaintiff claims that she attempted to resolve the matter with Fisher, but that she was not able to do so and that Fisher became increasingly hostile and belligerent towards her. Id. at ¶ 19. Plaintiff further states that Fisher's brother and one of her friends, both of whom worked for Defendant, also began to treat Plaintiff in a rude and offensive manner. Id. at ¶ 20. Sometime in 1997, Plaintiff experienced several flat tires on her company car. Id. at ¶ 22. Plaintiff was suspicious that the flat tires were related to her problems with Fisher. Id.

  In 1998, Plaintiff complained to her then manager, Maury Crawford, about Fisher. Id. at ¶ 26. Crawford was unable to resolve the matter with Fisher's manager. Id. Plaintiff then requested that Regional Vice President Jay Schwartz assist in resolving the matter. Id. at ¶ 27. In May 1998, Schwartz met with both Plaintiff and Fisher.*fn5 Id. at ¶ 28. Schwartz counseled Fisher and Plaintiff on better communication skills. Def.'s SMF at ¶ 25. Plaintiff further contends that "Mr. Schwartz brought up the issue of my `turning in' Mr. Richard Jeffries, which had occurred some five years previously. I felt that this reference was Page 5 completely inappropriate and delivered a clear message to Ms. Fisher that I was a trouble maker and obviously the one to blame for any problems." Jones Aff. at ¶¶ 29-30.

  During 1997-1998, Plaintiff was instrumental in setting up a health care related web site in partnership with the New York State Department of Aging. Id. at ¶ 40. "When the work on the web site was to be expanded, [Plaintiff] was abruptly told that [she] would no longer be in charge of [the] project and that it was being turned over to a male by the name of Jerry Malloy." Id. at ¶ 41. Plaintiff also maintains that "[d]uring this period when [she] received company sales awards, they were not announced at company meetings as were other employees' awards." Id. at ¶ 43.

  Plaintiff alleges that in February 1999, Colleen Ziegler, a district sales manager, overheard Schwartz saying that he was looking for a way to "get rid of Donna Jones." Id. at ¶ 35; Ziegler Aff. at ¶ 8. Plaintiff contends that her district manager, David Mosher, made similar comments. Jones Aff. at ¶ 36; Ziegler Aff. at ¶ 10.

  In July 1999, Plaintiff filed a written complaint to Defendant's human relations department. In the complaint, Plaintiff claimed to be the victim of age and gender-based discrimination. Pl.'s Ex. 4. In December 1998, Plaintiff received her 1998 performance review. Jones Aff. at ¶ 37. Although Plaintiff expected the highest rating, she "only received an adequate rating." Jones Aff. at ¶¶ 37-38. On February 2000, Defendant responded to Plaintiffs complaint stating that, after investigation, her complaints were unfounded. Pl.'s Ex. 5.

  In early 2000, Plaintiff was assigned to a new district manager, Dan Fitzpatrick, and a new regional vice president, Joseph Abdalla. Jones Aff. at ¶. 51. In the Spring of 2000, Plaintiff spoke to Fitzpatrick about being accepted into a particular management training Page 6 program. Id. at ¶ 53. Fitzpatrick and Abdalla met "to discuss a plan on how best to talk with Donna Jones regarding her interest in the . . . program." Pl.'s Ex. 7. Plaintiff was not accepted into the program. Id.

  Plaintiff further claims that, throughout 2000, Fitzpatrick, Mosher and Abdalla openly stated at managers' meetings that they wanted to document a case against Plaintiff so they could get rid of her. Jones Aff. at ¶ 55; Borgus Aff. at ¶ 7. At some of these same managers' meetings, another district sales manager, Joseph Burczak, is purported to have stated that he was adept at getting rid of "old deadwood" employees. Jones Aff. at ¶ 56; Borgus Aff. at ¶ 8. Abdalla is claimed to have stated that "Glaxo isn't a home for retired workers." Pl.'s Ex. 9.*fn6

  At a 2001 meeting, Mosher is claimed to have stated that "[t]here is no way I am going to let [Plaintiff] see the field doctors." Borgus Aff. at ¶ 11. In 2001, GSK restructured its sales department. According to Plaintiff, "[t]he intent of this change was to have the former hospital reps be integrated into selling to field locations outside of hospitals." Jones Aff. at ¶ 59. Under the change, sales representatives were assigned to one of two different sales plans: (1) 80% direct sales from hospitals and 20% field sales ("80/20"); or (2) 50% direct sales from hospitals and 50% field sales ("50/50"). Id. at ¶ 61. Plaintiff was placed in the 80/20 plan. Two other males were placed in the 80/20 plan. Pl.'s Ex. 10. Three males were placed in the 50/50 plan.

  Plaintiff contends that her placement in the 80/20 plan is the effectuation of Mosher's claimed intent not to allow her to see the field doctors. Jones Aff. at ¶. 65. According to Defendant, "GSK's home office, not plaintiff's supervisor, . . . Page 7 assigned incentive weightings according to market dynamics for employees with similar job responsibilities and gender was not a factor." Def.'s SMF at ¶ 48.*fn7

  In November 2001, Defendant held a managers' meeting during which there was discussion concerning a new form that was used to document managers' meetings with sales representatives. Jones Aff. at ¶ 72. Fitzpatrick, Mosher and Abdalla discussed the possibility of not using the new form with Plaintiff because "they were worried about comments which she might write on the form and how they `didn't want to start all over' in documenting a case for termination of Ms. Jones." Borgus Aff. at ¶ 13.

  In January 2002, Plaintiff's district was assigned to a new region that was headed by Schwartz. Defendant apparently received complaints from Plaintiff's co-workers that she was making derogatory comments about other employees. Def.'s SMF at ¶ 27. Schwarz directed Defendant's human resources department to investigate. Id. After investigation, Defendant determined that Plaintiff had disrupted the work environment. Id. at ¶ 29. Accordingly, Plaintiff was placed on a 30-day warning period. Id. The warning was lifted on May 29, 2002. Id. at ¶ 30.

  In March 2002, Plaintiff took a leave of absence. She returned to work in April 2002. At that time, Mosher assigned two sale representatives, both of whom are purported to have been in their early 30s, to call on some of Plaintiff's hospital clients. Jones Aff. at ¶ 83. In March 2003, Plaintiff again went out on leave. Plaintiff's company-provided short-term Page 8 disability benefits ran out on September 26, ...

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