United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI, JR., United States District Court Chief
Jayne Mula (“Plaintiff”) brings this employment
discrimination action against her former employer,
pharmaceutical company AbbVie, Inc.
(“Defendant”). Specifically, Plaintiff raises
hostile work environment, retaliation, and discrimination
claims under Title VII of the Civil Rights Act of 1964 and
the New York State Human Rights Law (“NYSHRL”).
She also raises a related claim under the False Claims Act
(“FCA”). Defendants have moved for summary
judgement. For the reasons stated below, Defendant's
Motion for Summary Judgment is GRANTED in its entirety.
worked as a pharmaceutical sales representative for Defendant
and was responsible for promoting certain gastrointestinal
drugs to physicians in Western and Central New York.
Individual district managers supervised sales representatives
and accompanied them on their drives to visit healthcare
providers. District Manager Mario Constantini was
Plaintiff's supervisor in 2007, and issued her an
informal record of warning and a performance improvement plan
due to her problems completing administrative
responsibilities in a timely manner and making enough sales
calls, which are face-to-face interactions with healthcare
providers. Constantini criticized Plaintiff for the same
issues in his 2010 evaluation.
McCutchan's Sexual Harassment and Alleged
to Plaintiff, trouble began in earnest for her in October
2011, when District Manager Frank McCutchan became her
supervisor. ECF No. 1 at 3. McCutchan made inappropriate
comments to Plaintiff about her physical attributes and her
family, some of which her coworkers overheard. Id.
McCutchan told Plaintiff that she should flirt with health
care providers during her sales calls, and implied to her
that she was neglecting her family by working so much.
Id. at 4. During one car ride, McCutchan told
Plaintiff she had a nice pool. Id. When Plaintiff
asked McCutchan what he meant, he told her that he had used
Google Earth to view satellite pictures of her home and saw
that she had a pool.
inappropriate behavior continued for several months, and in
December 2012 or January 2013, Plaintiff complained to
Defendant's Employee Relations department
(“ER”) and its Office of Ethics and Compliance
(“OEC”), as Defendant maintained policies
prohibiting workplace harassment and retaliation and required
employees to report such policy violations. ECF No. 45-1 at
520. She also requested that McCutchan not field travel with
her. ECF No. 45-1 at 17. ER initially informed Plaintiff that
she still had to travel with McCutchan because company policy
required sales representatives to travel with managers, but
ER ultimately made an exception to that policy and Plaintiff
did not have to travel with McCutchan again. ECF No. 45-1 at
Plaintiff reported McCutchan, she alleges that he retaliated
against her in various ways, including by giving her
“achieves expectations” ratings instead of
“exceeds expectations” ratings in her 2012
year-end performance review, reporting her to OEC for a
suspicious hotel bill and for potentially falsifying call
records, and for refusing to communicate with her. ECF No.
45-2 at 12. She also alleges that Doug Haling, the Regional
Manager for Plaintiff's district and McCutchan's
supervisor, had not made himself available to talk to
Plaintiff in retaliation for her complaints against
McCutchan. Plaintiff reported these retaliation allegations
ER was still investigating Plaintiff's claims against
McCutchan, McCutchan resigned from the company in August 2013
for unrelated reasons. On October 12, 2013, ER concluded its
investigation of Plaintiff's harassment allegations
against McCutchan and determined that her allegations were
substantiated. Consequently, ER changed McCutchan's
rehire status so that he was ineligible to be rehired if he
applied for a job at AbbVie again. ECF No. 41-1 at 501.
However, ER determined that Plaintiff's retaliation
allegations were unfounded. McCutchan's performance
reviews had already been trending downward before he learned
that Plaintiff had reported him to ER. ECF No. 45-2 at 3.
After field travel in August 2012, for instance, McCutchan
rated Plaintiff “partially achieves expectations”
for failing to visit a sufficient number of health care
providers because of her poor territory organization.
Additionally, although Plaintiff feared that any negative
comments in her reviews would jeopardize her prospects for a
raise, she still received a raise in 2012-the same year in
which she alleges that McCutchan gave her an unfairly
critical year-end rating of “achieves
expectations.” ECF No. 45-1 at 56.
found that it was not retaliatory when McCutchan reported
Plaintiff to OEC for suspected falsifications. ECF No. 45-1
at 385. ER found that Plaintiff submitted inaccurate
information regarding a hotel stay on an expense report and
omitted the names of attendees of a business lunch in another
report. Id. ER found in both cases that Plaintiff
did not intend to deceive anyone, but that McCutchan was
justified in reporting the issues to ER instead of directly
discussing them with Plaintiff. Id.
(“Particularly in light of Jayne's request that
[McCutchan] not have contact with her, his report to ER . . .
was appropriate in order to get guidance on how best to
address the questionable expense.”). Finally, ER
concluded that Plaintiff's complaint that Doug Haling was
treating her differently was unfounded. ECF No. 45-1 at 498.
Phelps's Retaliation and Territorial Realignment
McCutchan resigned in August 2003, Jeffrey Phelps took over
as Plaintiff's district manager. Plaintiff and Phelps did
not get along from the start: Phelps was frustrated by
Plaintiff's perceived hostility, her failure to make a
sufficient number of sales calls and to perform her
administrative duties, and her resistance to following
company policies, and he expressed his frustration in
Plaintiff's performance reviews and in a coaching
memorandum that he issued to her. He also reported her to OEC
for potentially violating company policy by donating toys to
a hospital in Syracuse, which could have been perceived as a
quid pro quo arrangement with the hospital, and Plaintiff had
repeatedly ignored Phelps's requests that she stop
donating toys. He also told OEC and ER that Plaintiff was
having inappropriate conversations with doctors about company
grants, was not correctly recording the details of her sales
calls in a company database, and was accusing other sales
representatives of faking sales calls.
believed that Phelps was being hostile and retaliating
against her for reporting his friend McCutchan for sexual
harassment. Because McCutchan and Phelps were friendly and
McCutchan had recommended Phelps as his replacement,
Plaintiff believed that Phelps resented her for the incident
with McCutchan. Additionally, Plaintiff believes that Phelps
knew about the harassment investigation because McCutchan
sent Phelps an email in January 2014 with a zip file
attachment labeled “Mula, ” although Phelps
claims he did not read all of the attached files and thought
the email was odd. ECF No. 45-1 at 49.
complained to ER that Phelps was retaliating against her, but
ER investigators concluded that her allegations were
unfounded because Phelps wrote his performance reviews based
on his firsthand observations of her work, and he had genuine
reasons to believe that Plaintiff was violating company
policies. Furthermore, Phelps was not singling Plaintiff out
and had reported at least one other sales representative for
also alleges that Doug Haling neglected to timely inform her
that AbbVie was expanding her sales territory. AbbVie
increased the size of Plaintiff's sales territory based
on the recommendations of an outside vendor to insure that
each sales representative had the same opportunity to meet
with a sufficient amount of healthcare providers. The
realignment became effective on July 1, 2013, and it was
intended in part to help Plaintiff because she complained
that many medical institutions in her sales area had policies
restricting access to physicians. Plaintiff states that she
was only given about one month's notice of the change,
while representatives in other realigned ...