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Martin Grant v. Roche Diagnostics Corporation

July 20, 2011


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


Plaintiff Martin Grant ("Mr. Grant" or "Plaintiff") filed suit against Defendant Roche Diagnostics Corporation ("Roche" or "Defendant"), alleging violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623 et seq., and the New York Human Rights Law ("NYHRL"), N.Y. EXEC. LAW § 296. Pending before the Court is Roche's motion for summary judgment. For the following reasons, Roche's motion is GRANTED.


Mr. Grant was hired by Roche as an Account Manager in November 2000 when he was 46 years old. (Def. 56.1 Stmt. ¶ 3.) Greg O'Neal, a Regional Business Manager at Roche, was one of the individuals who interviewed Mr. Grant and took part in the decision to hire him. (Def. 56.1 Stmt. ¶ 4.) Mr. O'Neal became Mr. Grant's direct supervisor in early 2001 and remained his supervisor until he was terminated in 2008. (Pl. Dep. 109-10.)

As an Account Manager, Mr. Grant's main function was to sell Roche products to hospitals in his assigned region, which, as of 2003, was Territory 11HF. (Def. 56.1 Stmt. ¶¶ 5, 8; Pl. 56.1 Stmt. ¶ 8.) Like all Account Managers, Mr. Grant received annual evaluations from his supervisors which provided feedback with respect to his performance in various areas and was given one of five ratings: (1) Far Exceeds Standards, (2) Exceeds Standards, (3) Meets Standards, (4) Needs Development, or (5) Unsatisfactory. (Def. 56.1 Stmt. ¶ 24.)

On his 2001 review, although Mr. Grant received a "Meets Standards" rating, Mr. O'Neal provided some negative feedback, including:

 "Martin achieved 94% of his diabetes dollar goal for 2001--which was below goal and disappointing."  "Martin needs to devote more focus to penetrating and driving sales at competitive accounts for closes."  "Martin needs to continue to focus on listening to his customers, probing with questions, and not rushing to conclusions in his eagerness to sell a Roche solution and close the customer." (Pl. 56.1 Stmt. Ex. B). The 2001 review concluded by stating that although Mr. Grant had a "challenging year" and finished below goal, it was due, in part, to having inherited a territory that had been neglected. (Id.)

On his 2002 review, Mr. Grant again received a "Meets Standards" rating. Mr. O'Neal recognized Mr. Grant's accomplishments and successes for the year but the review also echoed some of the same criticisms from the prior year, including a "disappointing" negative sales growth and a need to focus more on closing competitive accounts. (Id. at Ex. D.)

Mr. Grant's performance improved in 2003, and Mr. O'Neal awarded him an "Exceeds Standards" rating, acknowledging his "outstanding accomplishments," but warned that "it is going to be very important for Martin to continue to expand his presence in his competitive accounts." (Id. at Ex. C.)

In 2004 and 2005, Mr. Grant again received "Meets Standards" ratings. The reviews were mostly positive despite his below average sales performances; however, Mr. O'Neal emphasized in both reviews that conversion of competitive accounts was critical and should be Plaintiff's primary focus for the following year. (Pl. 56.1 Stmt. Ex. D.) Mr. Grant never submitted any written response expressing disagreement with these annual reviews. (Def. 56.1 Stmt. ¶ 31.)

In 2006, Roche, in particular Area Business Manager William Randy Hitchens,*fn2 encouraged more frequent "ride-withs" by Mr. O'Neal and the other Regional Business Managers with Account Managers. During these ride-withs, Mr. O'Neal would spend the day with an Account Manager to observe his or her interaction with customers and then offer feedback in the form of a coaching report.*fn3 (Def. 56.1 Stmt. ¶¶ 53-54.) Mr. O'Neal conducted seven ride-withs with Mr. Grant during the course of 2006 and prepared reports*fn4 expressing similar concerns regarding Mr. Grant's lack of focus on developing and converting E accounts.*fn5 (Def. 56.1Stmt. ¶ 55; O'Neal Dec. Exs. I-O.) During one of these ride-withs, Plaintiff alleges that Mr. O'Neal told him that sales was a "young man's game"*fn6 and that he needed to be more like a Jack Russell Terrier. (Pl. 56.1 Stmt. ¶¶ 18, 142.)

In November 2006, after personally observing Mr. Grant make a presentation at a Regional Meeting, Mr. Hitchens sent him an email identifying several areas where Mr. Grant needed to show improvement in order to advance within Roche. (Def. 56.1 Stmt. ¶ 64; Hitchens Dec. ¶ 7 & Ex. A.) Specifically, Mr. Hitchens directed Mr. Grant to listen to other people's opinions, accept feedback, stay focused when presenting sales plans, close competitive E accounts, and demonstrate superior sales performance. (Hitchens Dec. Ex. A.) These suggestions largely tracked the areas that Mr. O'Neal previously had identified as areas in which Mr. Grant needed to improve.

In January 2007, Mr. O'Neal planned to issue Mr. Grant a "Meets Expectations" rating on his 2006 annual performance review, but Mr. Hitchens directed him instead to lower Mr. Grant's rating to "Needs Development." (Def. 56.1 Stmt. ¶¶ 69, 76.) According to the 2006 review, Mr. Grant demonstrated similar performance deficiencies in 2006 as in previous years, including failing to close a major competitive E account andfalling significantly below his target sales goal for the year. (Hitchens Dec. Ex. C.)

Mr. Grant continued to demonstrate these performance deficiencies in 2007, as evidenced by his ride-withs from May and August 2007. (Pl. Dep. Ex. 32, 33; Compl. Ex. F.) On June 20, 2007, Mr. Hitchens emailed Mr. O'Neal inquiring whether he had any "backup sales candidates" to take over Mr. Grant's territory because although they "ha[d] been over patient with him to change his behavior, [he] s[aw] no improvement." (Hitchens Dec. Ex. D.)

Rather than terminate Mr. Grant, in September 2007, Mr. Hitchens, Mr. O'Neal and Nina Perry, Roche's Human Resources Manager, developed a "coaching plan" which set out and clearly identified the areas in which Mr. Grant needed to demonstrate improvement, including improving his deficient sales performance, converting competitive E accounts, developing high-quality, organized sales plans, and improving his leadership and communication skills. (Def. 56.1 Stmt. ¶¶ 84-85, 87, 89.) Hitchens, O'Neal and Perry spent several weeks tailoring the goals and objectives in the plan to address Mr. Grant's individual needs. The process overall was similar to the process used to develop coaching plans for other Account Managers exhibiting performance deficiencies. (Def. 56.1 Stmt. ¶¶ 85-86.) Mr. Grant disagreed with the decision to put him on a coaching plan and attempted to justify his poor performance. (Def. 56.1 Stmt. ¶ 90.) He argued, for example, that it was more difficult for him to close E accounts than other Account Managers because his territory was dominated by two large "Independent Health Networks" ("IHN's"), comprised of six and eleven hospitals respectively, which make their purchasing decisions as a unit, not as individual hospitals. Therefore, his territory had less opportunity for growth than others. (Pl. Opp. 10-11; O'Neal Dep. Ex. 28). He did not, however, argue that the decision-makers were motivated by discriminatory animus.

Plaintiff admits that by mid-October he was not meeting the objectives set forth in the coaching plan. (Pl. 56.1 Stmt. ¶ 93.) So, on or around December 1, 2007, Hitchens, O'Neal, and Perry placed Mr. Grant on a Performance Improvement Plan ("PIP"). (Def. 56.1 Stmt. ¶ 94, 96; Pl. 56.1 Stmt. Ex. Q.) Similar to the coaching plan, the PIP was the result of several weeks of collaboration among Hitchens, O'Neal, and Perry to specifically tailor the PIP to address Mr. Grant's performance deficiencies. (Def. 56.1 Stmt. ¶ 95.) The PIP set out objectives similar to those in the coaching plan.

Mr. Grant again failed to achieve his sales goals for 2007, and in February 2008, he was removed from the larger of his IHN accounts after administrators for two of the hospitals expressed dissatisfaction with his service. (Def. 56.1 Stmt. ¶¶ 103, 107.) Mr. Grant argues that these administrators were dissatisfied with Roche's products not his performance, although one "had some kind of personality conflict with Martin Grant which may or may not have had anything to do with his job performance." (Pl. 56.1 Stmt. ¶ 25.)

On February 29, 2008, Mr. Grant's employment at Roche was terminated because, according to his termination letter, of his "inability to meet performance expectations." (Pl. Dep. Ex. 43.) He was 54 years old. (Def. 56.1 Stmt. ¶ 114.) The decision was made by Ms. Perry, Mr. O'Neal, Mr. Hitchens, who were 46, 46 and 55 years old respectively at the time. (Def. 56.1 Stmt. ¶ 116.) Roche replaced Mr. Grant with an Account Manager who was fifty years old. (Def. 56.1 Stmt. ¶ 119.)

On or about May 29, 2008, Mr. Grant filed a Charge of Discrimination in Employment with the EEOC, and on February 24, 2009, the EEOC issued a "right to sue" letter authorizing Mr. Grant to bring suit. He filed his Complaint in this matter on April 14, 2009, and on February 14, 2011, Defendant filed its motion for summary judgment.


I. Standard of Review

"Summary judgment is appropriate where there are no genuine disputes concerning any material facts, and where the moving party is entitled to judgment as a matter of law." Harvis Trien & Beck, P.C. v. Fed. Home Loan Mortgage Corp. (In re Blackwood Assocs., L.P.), 153 F.3d 61, 67 (2d Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

"The burden of showing the absence of any genuine dispute as to a material fact rests on the party seeking summary judgment." McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). "In assessing the record to determine whether there is a genuine issue to be tried as to any material fact, the court is required to resolve all ambiguities and draw all ...

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