United States District Court, S.D. New York
OPINION AND ORDER
NELSON S. ROMAN, District Judge.
Adarella Deylii ("Plaintiff") brings this action against Novartis Pharmaceuticals Corporation ("Novartis" or "Defendant"), alleging violations of the Age Discrimination in Employment Act ("ADEA"), Title VII, 42 U.S.C. § 2000e, and state and New York City anti-discrimination laws on the basis of age and race discrimination and retaliation. Before the Court is Defendant's motion to dismiss Plaintiff's gender and age discrimination claims pursuant to Fed.R.Civ.P. 12(b)(6). For the following reasons, Defendant's motion is GRANTED.
a. Plaintiff's Claims
Plaintiff is an African American woman who was born in April 1961. She began working at Novartis as a sales representative on February 9, 2004. As a sales representative, Plaintiff was charged with selling a number of pharmaceutical drugs, including Exelon Patch, Stalevo, Comtan, and Focalin XR. Plaintiff's product portfolio was weighted as follows: 50% Exelon Patch, 20% Focalin XR, 10% Stalevo, and 10% Comtan. Of the employees on Plaintiff's team, Plaintiff was the only African American and the only individual over 50.
In March 2010, Lori Feller became Plaintiff's supervisor, filling a position that had been vacant. Plaintiff alleges that soon after Ms. Feller took this position, Ms. Feller began to discriminate against Plaintiff. First, Plaintiff alleges, Ms. Feller began reporting that Plaintiff was performing below expectations. Plaintiff states that on the contrary, she had met or exceeded the goals set in three of the four products she sold in 2010. The only product for which Plaintiff did not meet her goal was Exelon Patch and Plaintiff alleges that the Exelon Patch was a difficult product to sell for all Novartis employees. Plaintiff states that her sales numbers were more depressed because the Exelon Patch was heavily weighted for Plaintiff. Other employees supervised by Ms. Feller had a less than 50% weighting for Exelon Patch. For the sales year of 2010, Ms. Feller threatened to give Plaintiff a score of 1 out of 3 on her end of the year review, which would have made Plaintiff susceptible to layoffs in the event the company decided to take such action. In each previous year that Plaintiff worked at Novartis, Plaintiff received either rating of 2 or 3. Plaintiff's sales ranking for the 2010 sales year was 116 out of 146 nation-wide sales representatives and the territory to which she was assigned was ranked 7 out of the 11 territories supervised by Ms. Feller. In March 2011, Plaintiff received an award for outstanding goal achievement for Stalevo and Comtan in 2010.
In September 2010, Plaintiff submitted a grievance to the Human Resources Department of Novartis complaining of the way she was being treated by Ms. Feller. After Plaintiff filed this complaint, there were changes made to the Neurology & Psychology Unit to which Plaintiff belonged. Plaintiff's primary responsibility was previously with neurology but after September 2010, she was shifted to psychology, with a specific focus on schizophrenia. This resulted in a changed client list for Plaintiff and a new pharmaceutical in her portfolio, Fanapt.
In January 2011, Plaintiff was assigned a new sales district, although she remained within the geographic area supervised by Ms. Feller, and her client base changed significantly. Plaintiff received 99 new clients and kept only 5 clients from her previous district. Plaintiff alleges that this was done with the purpose of discriminating against Plaintiff because no younger, Caucasian sales representatives lost such a large portion of their client base.
Plaintiff alleges that in September 2010 and May 2011, Ms. Feller falsely accused Plaintiff of falsifying sales calls to physicians. Novartis' policy is that the first such incident receives a warning, while the second is grounds for dismissal. Plaintiff believes the reason Ms. Feller falsely accused Plaintiff was because Plaintiff's sales performance was improving and therefore, Ms. Feller could no longer fault Plaintiff for poor sales. Plaintiff insists that there is no truth to these accusations.
Plaintiff states that in May 2011, her client list changed for a third time. Plaintiff claims that in May and June 2011, she was the leading seller of Fanapt on Ms. Feller's team and was a contender for a national contest. The contest was originally scheduled to end at the end of June, but it was pushed back until the end of July. Plaintiff was terminated on July 13, 2011.
b. Velez Action and Settlement
In 2004, Novartis was named as the defendant in a class action lawsuit filed in the Southern District of New York that alleged gender discrimination. That case, Velez v. Novartis , went to trial and ended in a jury verdict for plaintiffs. The parties ultimately entered into a settlement agreement with approximately $150 million paid to the class with additional programmatic relief in the form of changes to Novartis' employment practices valued at over $22 million. Judge McMahon approved the settlement on July 14, 2010 ("Preliminary Approval Date") and after notice to class members and a fairness hearing pursuant to Rule 23, the settlement was fully approved on November 30, 2010.
The settlement class in Velez was defined as: "[A]ll women who are currently holding, or have held, a sales-related position of Sales Representatives, Sales Consultants, Executive Sales Consultants, Sales Associates, Sales Specialists, Senior Sales Specialists or District Managers I with Novartis Pharmaceuticals Corporation, from the state of the class period, July 15, 2002, through the Preliminary Approval Date[.]" Settlement Agreement and Release ("SAR"), Velez Docket No. 294-2 at 6; see also Velez v. Novartis Pharm. Corp., No. 04 Civ. 09194(CM), 2010 WL 4877852, at *8-9 (S.D.N.Y. Nov. 30, 2010) ("Judge McMahon Opinion Approving Settlement").
A notice of the SAR ("Notice") was provided to all class members and included the description of the class and in bold, capital letters, described the document as a notice of a gender discrimination class action against Novartis, and informed the class member that she had a right to obtain money pursuant to the settlement. Velez Docket No. 294-3 at 1. The notice also provided a summary of the settlement, the opt-out procedures, a description of the claims ...