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Brown v. Astrazeneca Pharmaceuticals

August 16, 2006


The opinion of the court was delivered by: Trager, J


Plaintiff John Edd Brown brings this action against his former employer, AstraZeneca Pharmaceuticals, L.P., and individual AstraZeneca employee Deidre Grayson. This action arose from plaintiff's termination by AstraZeneca. Plaintiff, who is African-American, brings claims against AstraZeneca for racial discrimination in violation of Title VII of the Civil Rights Act of 1964 and intentional infliction of emotional distress. He brings a defamation claim against Deidre Grayson for statements she made to AstraZeneca.

Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated below, defendants' motion for summary judgment is granted on all claims.


Plaintiff began working as a Pharmaceutical Sales Specialist (PSS) for AstraZeneca in April, 1995. Pl.'s Aff. ¶ 1. AstraZeneca Regional Sales Manager (RSM) Jeff Cook hired plaintiff and then promoted him to District Sales Manager (DSM) in February, 2001. Pl.'s Dep. 69:11-16. As DSM, plaintiff supervised a "team" of PSSs responsible for promoting the company's products Nexium and Toprol-XL. Id. at 114:14-19.

Plaintiff claims he was subjected to several racial epithets while employed at AstraZeneca. After a 2001 management meeting, plaintiff was approached in the parking lot by a fellow DSM, John Crooks. Pl.'s Dep. 98:9-15, 101:15-21. Crooks, like plaintiff, is African-American. He had assisted plaintiff in securing the promotion to DSM and plaintiff considered him a friend. Id. at 64:6-65:20. Crooks told him that two particular PSSs on plaintiff's sales team felt that plaintiff was treating them unfairly because they were African-American. Id. at 91:22-92:20. Plaintiff contends that he was displeased with their performances, as compared to those of his other sales representatives, and would sometimes talk with the men about certain areas that needed improvement. Id. at 95:9-96:12.

Crooks then told plaintiff that the two PSSs called plaintiff an "Uncle Tom." Pl.'s Dep. 103:11-13. Plaintiff alleges that Crooks became very angry with him when he refused to give preferential treatment to his African-American PSSs. Pl.'s Aff. ¶ 5. Plaintiff also claims that Crooks frequently made derogatory statements about Jewish people and co-workers whom he believed to be homosexual. Pl.'s Counter-Statement of Contested Facts ¶ 3.

At his deposition, plaintiff remembered a second racial epithet. See Pl.'s Dep. 284: 17-24. Defendant Deidre Grayson, a PSS on his sales team, allegedly told plaintiff he was "nothing more than a nigger with an MBA." Id. at 284:23-24. Grayson is one-half African-American. Id. at 282:6-22. Plaintiff claims Grayson is a "close personal friend" of Crooks. Pl.'s Aff. ¶ 8.

Although plaintiff was offended by the incidents with Crooks and Grayson, he did not file a complaint with AstraZeneca's Human Resources (HR) department. Pl.'s Dep. 287:24-288:9. Plaintiff contends that he has been dealing with racism all his life and just "dealt with [the comments] because I felt I had to." Pl.'s Aff. ¶ 5.

Plaintiff claims he was an "exemplary" AstraZeneca employee, as evidenced by his annual evaluation. Compl. ¶ 2. Plaintiff's "Performance Evaluation" for 2001 took place on January 11, 2002. See Pl.'s Ex. A. AstraZeneca's Performance Evaluation forms list four choices for an employee's "Overall Rating": "Distinguished," "Excellent," "Good" and "Unacceptable." See id. Plaintiff's supervisor, Jeff Cook, gave him an Overall Rating of "Good:

Performance Met Overall Expectations." Id. Cook noted that plaintiff's performance "exceeded" expectations for six of the eleven listed goals and "met" expectations for the remaining five goals. See id. In his specific comments about plaintiff, Cook noted that plaintiff was "a pleasure to work with," but needed to work on his time management because "too many deadlines were not met in a timely manner." Id. Cook also commented that plaintiff should consult with him when "handling HR issues." Id.

One of those "HR issues" soon arose. Grayson, one of the top sellers on plaintiff's sales team, expressed a desire to switch to another sales team. AstraZeneca was launching a new drug, Crestor, and this "new, sexier" drug presented the opportunity for greater prospective earnings for its sales representatives. See Pl.'s Dep. 114:25-115:21. Grayson approached DSM Wendy Reed about transferring to the Crestor sales team. Plaintiff was insulted that Reed and Grayson discussed the transfer without first consulting him. Additionally, plaintiff believed that lateral transfers were against company policy, as such "jumping around . . . would create instability" within the company. Id. at 151:22-152:21. He informed Grayson of this policy and then discussed the situation with Cook, who confirmed AstraZeneca's policy on lateral transfers. Pl.'s Aff. ¶ 7.

Grayson, angered by plaintiff's response, met with Cook to discuss plaintiff's refusal to recommend her transfer. Pl.'s Aff. ¶ 7. Both Grayson and Wendy Reed were upset with how plaintiff handled the transfer and Cook advised plaintiff that he should have behaved more diplomatically. Pl.'s Dep. 191:7-192:21. Cook maintains that he received many additional complaints about plaintiff from RSMs, DSMs and PSSs of all races. See Cook Dep. 63:19-25, 64:2-12, 71:20-72:21.

Cook became so concerned about plaintiff's managerial skills that, on June 4, 2002, he spoke with plaintiff about putting him on an "Action Plan." An Action Plan is a component of AstraZeneca's "Performance Improvement" program, which provides an opportunity for employees with unacceptable performance to better meet company expectations. See Pl.'s Ex. E. AstraZeneca describes an Action Plan as "written feedback to an employee on one or more areas of unacceptable performance, which may set a timetable for achievement of acceptable performance." Id.

Plaintiff felt his performance did not warrant placement on this program. Pl.'s Dep. 138:9-11. Based on his experience at the company, plaintiff claims that placement on an AstraZeneca Action Plan is "a mere euphemism for managing someone out of the company." Pl.'s Aff. ¶ 9. Cook countered this at his deposition. He claimed that numerous AstraZeneca employees who were once placed on Action Plans went on to be promoted. Cook Dep. 69:16-22. Plaintiff himself admits that he once placed a particular PSS on an Action Plan and the PSS successfully completed the Plan without being terminated. Pl.'s Dep. 138:12-14, 140:3-12.

Although Cook discussed an Action Plan with plaintiff, he did not place plaintiff on one at that time. Pl.'s Dep. 137:25-138:6. Six days later, however, plaintiff was suspended with pay pending an investigation into allegations that he violated AstraZeneca's antiviolence policy. See id. at 239:11-13. These allegations were made by Grayson. She had filed a complaint with Ann-Marie McGee in AstraZeneca's HR department and Cook, charging plaintiff with "inappropriate touching, staring and threatening behavior." Pl.'s Aff. ¶ 2. Grayson claimed that plaintiff stared at her and routinely grabbed his subordinates' arms when seeking their attention. Pl.'s Dep. 292:13-15, 295:25-296:14. Plaintiff admits that Grayson and he once "look[ed] at each other for a long time" to signal the conclusion of a "contentious" meeting and that he routinely touched his co-workers' arms to emphasize a point. Id. at 293:3-8, 298:8-12. He contends, however, that Grayson only filed these charges because she "mistakenly believed that [he] was standing in her way" of switching to the Crestor sales team. Pl.'s Br. Opp'n Defs.' Mot. Summ. J. at 5.

While suspended, plaintiff received AstraZeneca's "Sales Value Proposition Award" for "Development." See Pl.'s Ex. B. The $250 award was accompanied by a letter from Cook stating: "I want to thank you for the hard work and dedication you have put forth over the past year." Id.

AstraZeneca concluded its investigation two weeks later, finding that plaintiff's conduct did not rise to the level required to violate the company antiviolence policy. See Pl.'s Dep. 239:15-22. Cook called plaintiff, telling plaintiff he was cleared to return to work, but he would have to go on the Action Plan they had previously discussed. Id. at 239:17-240:21. Because plaintiff objected to being placed on the Action Plan, Cook gave him the option of returning to the sales representative position that he was originally hired for back in 1995, without the Action Plan. See id. at 240:22-25. If he chose to return to his current managerial position, however, he would be required to go on the Action Plan. Id. at 241:2-5.

Plaintiff chose to return to his current DSM position and arranged to meet with Cook on July 8, 2002. However, plaintiff did not show up at the meeting. Pl.'s Dep. 242:14-17. When Cook was able to locate him the next day, plaintiff informed Cook that he would not return to work under the current conditions. Id. at 243:5-19. Plaintiff then asked Cook if he was required to attend the upcoming national sales meeting. Id. at 244:21-24. Cook consulted HR and his immediate supervisor, Marianne Jackson (Area Sales Director for AstraZeneca). Cook told plaintiff he was expected to attend the meeting, and if he was unable to attend, he must e-mail his reasons for nonattendance. Id. at 245:11-18, 246:23-247:20.

Plaintiff never sent the requested e-mail giving Cook plaintiff's reasons for nonattendance, but on July 22, 2002, he did e-mail Cook to inform him that he had retained counsel and all future communication should go through his attorney or AstraZeneca Vice-President Lynne Tetrault. Pl.'s Dep. 248:12-21. Plaintiff then left AstraZeneca on disability leave and did not return to work until January, 2003. Pl.'s Aff. ¶ 11.

Plaintiff alleged that depression and anxiety brought on by the stress of the HR investigation and the pending Action Plan rendered him unable to work. He had been seeing a psychologist, Philip Spivey, intermittently since December, 1999 for treatment of recurring depression and anxiety. See Spivey Dep. 7:13-8:12, 20:2-7. Based on his meetings with plaintiff over the years, Dr. Spivey had concluded that plaintiff's depression was symptomatic of his problems communicating and relating to others. See id. at 34:17-24.

Plaintiff originally saw Dr. Spivey for depression and anxiety related to his familial and personal relationships, but had returned to therapy to discuss problems related to his employment. Spivey Dep. 20:2-7. Plaintiff felt "angry," "hurt" and "betrayed" that a "former work ally ha[d] turned on him because of a staffing decision that he . . . made." Id. at 37:12-14, 40:12-13. Dr. Spivey reported that plaintiff tended to "take certain things very personally" and referred him to a psychiatrist, Richard Dudley, for medication. Id. at 61:16-18, 68:13-18. Plaintiff continued to see Dr. Spivey while on disability leave. Plaintiff told Spivey he was going on job interviews through December, 2002, while still employed at AstraZeneca. See id. at 108:10-109:8.

While plaintiff was on disability leave, his psychiatrist submitted an assessment of plaintiff's condition to AstraZeneca at the company's request. See Pl.'s Ex. D. In his evaluation, Dr. Dudley determined that plaintiff was suffering from depressive disorder which impaired his concentration, problem-solving ...

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