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Mula v. Abbvie, Inc.

United States District Court, W.D. New York

January 21, 2018

JAYNE MULA, Plaintiff,
ABBVIE, INC., Defendant.


          HON. FRANK P. GERACI, JR., United States District Court Chief Judge


         Plaintiff 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.


         Plaintiff 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.

         I. McCutchan's Sexual Harassment and Alleged Retaliation

         According 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.

         McCutchan's 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 495.

         After 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 to ER.

         While 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.

         ER also 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.

         II. Phelps's Retaliation and Territorial Realignment

         After 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.

         Plaintiff 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.

         Plaintiff 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 similar issues.

         Plaintiff 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 ...

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