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Brunner v. Novartis Pharmaceutical Corporation

United States District Court, Second Circuit

August 29, 2013



MICHAEL A. TELESCA, District Judge.


Plaintiff George Brunner, ("Brunner"), brings this action pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. and the New York Human Rights Law, codified at § 296 of the New York Executive Law, claiming that he was terminated from his employment with Novartis Pharmaceutical Corporation ("Novartis"), and denied a promotion, on the basis of his age. Specifically, plaintiff, a former pharmaceutical sales representative, claims that he was scrutinized more closely than other employees by Novartis because of his age, and ultimately fired from his employment on the basis of his age.

Defendant denies plaintiff's allegations, and moves for summary judgment against Brunner on grounds that Brunner has failed to state a cause of action for employment discrimination. Novartis contends that Brunner did not receive a promotion because another qualified candidate did, and was fired because he violated company guidelines with respect to hosting or participating in sales events, and was among the poorest performers in terms of sales.

For the reasons set forth below, I grant defendant's motion for summary judgment, and dismiss plaintiff's Complaint with prejudice.


Plaintiff George Brunner was hired by defendant Novartis Pharmaceutical Corporation as a Senior Account Manager in July, 2004. At the time Brunner was hired, he was 56 years old. Brunner claims that although he performed his job as a Senior Account Manger well, within six months of being hired, he was nevertheless transferred to the position of Primary Care Representative, a position he considered a demotion. Although plaintiff claims that the transfer was a demotion, he admitted during his deposition that the transfer resulted in no diminution of benefits or compensation. Deposition Testimony of George Brunner at pp. 30-31. Moreover, plaintiff further admitted during his deposition that he was transferred because the division he worked in was eliminated, and most other employees, except for at least one employee who was terminated, were also transferred. Deposition Testimony of George Brunner at pp. 23, 27, 29-30.

As a Primary Care Representative, Brunner specialized in promoting and selling certain products sold by Novartis, including medications for the treatment of Alzheimer's disease, overactive bladder, and high blood pressure. Brunner reported to District Manager Patrick Morris, ("Morris") who during all relevant periods was over the age of 40. In Brunner's performance evaluation of 2005 prepared by Morris, he rated Brunner a "2" (on a scale of 1 to 3, 1 being low, and 3 being high) with respect to his performance versus his objectives for the year, and a "2" in the area of "values and behaviors." The "values and behaviors" rating reflected areas including customer focus, innovation, creativity, leadership, accountability, integrity, collaboration, teamwork, and communication.

In 2006, Brunner received an improved evaluation, scoring a "3" in the area of performance, and a "2" in the area of values and behaviors. In 2007, Brunner received a "2" in both areas. In that year, Brunner ranked 37th out of 56 sales representatives in the region, and his goals for 2008 were to move in to the top 50% of sales representatives. In 2008, however, Brunner fell to 45th out of 50 sales representatives. He was rated a "1" by Morris in the area of performance, and a "2" in the area of values and behaviors. In a self-evaluation, Brunner rated himself a "1" in the area of performance, and in his deposition testimony, acknowledged that his sales numbers were "not good" and "below target." Deposition Testimony of George Brunner at p. 85.

In the fall of 2008, Burner applied for a sales management position in the Long Term Care Division, a newly formed division that serviced many of the same customers as the Senior Care Division that was eliminated at the end of 2005. During his interview for the position, one of the two people interviewing Brunner suggested that Brunner "would not know what a data switch table' is."[1] According to Brunner, the remark indicated a bias against his age, because the interviewer assumed that Brunner was too old to understand the technology. Brunner, who was one of approximately 50 to 100 candidates for 10 to 15 openings, did not get the job. Brunner claims that a less qualified candidate who was under the age of forty at the time, was hired for the position Brunner sought.

As of March, 2009, Brunner was ranked 86 out of 120 sales representatives in the Northeast Region. In July, Brunner fell to 93rd out of 120. In May, 2009, following an investigation into a sales event organized by Brunner, Morris issued a "conduct memo" to Brunner informing him that the event violated several ethical guidelines established by Novartis to ensure that its sales events complied with state and federal laws and regulations. The event at issue was a "roundtable" hosted by Brunner which took place at a restaurant in Rochester, New York. According to Novartis, a "roundtable" is an event paid for by Novartis where physicians and/or other health care professionals are invited to learn about and discuss products offered by the company. To ensure compliance with applicable laws and regulations, Novartis requires, inter alia, that only health care professionals attend, and that all participants sit in a common area to facilitate discussion of the Novartis products being featured.

It is undisputed that at the event hosted by Brunner, unauthorized participants, including relatives of healthcare professionals, attended the event. While Brunner claims that he was unaware prior to the event that unauthorized participants would be accompanying the invited guests, he admits that he knew unauthorized people were in attendance, but decided that it would be better to continue with the event rather than cancel it. It is further undisputed that the participants did not sit in a common area or at a common table.

When Novartis became aware of the apparent improprieties with the event, it initiated an investigation of program. As part of the investigation, Novartis requested receipts for the event from Brunner, as well as the original sign in sheet. The receipts submitted by Brunner, however, reflected a different date and time from the event that was actually held. According to Brunner, he was unable to produce receipts from the actual event for reasons that were "outside of [his] control." Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment at p. 18. Plaintiff was also unable to supply the original sign-in sheet for the event for more than two months after the sheet was requested. Moreover, the original sign-in sheet, in violation of Novartis' policy for conducting roundtables, contained names that were filled in by Brunner himself, rather than the attendees. Based on the results of the investigation, Novartis concluded that Brunner had likely doctored the attendance sheet for the event.

The conduct memo issued by Morris in June 2009 noted Brunner's deficiencies in conducting the roundtable, and informed Brunner that any further failure to file company guidelines with respect to holding events could result in disciplinary action, including termination of employment.

Throughout the first seven months of 2009, Morris, who as a District Manager overseeing a regional sales force routinely accompanied his sales representatives on sales calls for the purpose of observing his sales staff and critiquing their performance, occasionally accompanied Brunner on sales calls to doctors throughout plaintiff's sales territory. While Morris noted several positive areas in plaintiff's performance, Morris often noted that Brunner did not "close the sale" as forcefully as Morris would have liked. Morris noted that Brunner was not meeting ...

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